                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       OCT 31 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MICHAEL RAY WEEKS,                              No.   17-17133

                Petitioner/Appellant,           D.C. No. 4:14cv02283-DCB

     v.

CHARLES L. RYAN, Warden;       MEMORANDUM*
ATTORNEY GENERAL FOR THE STATE
OF ARIZONA,

                Respondents/Appellees.

                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                      Argued and Submitted October 9, 2018
                            San Francisco, California

Before: TASHIMA and MURGUIA, Circuit Judges, and HINKLE,**
District Judge




*
 This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
 The Honorable Robert L. Hinkle, United States District Judge for the Northern
District of Florida, sitting by designation.
      Michael Ray Weeks stood trial in an Arizona state court on multiple counts

of sexual assault, aggravated assault, and kidnapping. He testified and showed no

signs of incompetence while testifying or at any other stage of the proceeding. He

did not ask for, and the trial court did not conduct, a competency hearing. The jury

convicted Mr. Weeks on all counts but one. He appealed but did not raise any issue

related to competence. The Arizona Court of Appeals affirmed.

      On state collateral review, Mr. Weeks asserted, among other things, that he

was incompetent during the trial, that the trial court should have conducted a

competency hearing, and that his attorney rendered ineffective assistance by failing

to adequately investigate and assert Mr. Weeks’s incompetence. After an

evidentiary hearing, the trial court rejected the claims on the merits, finding as a

fact that Mr. Weeks was competent during the trial. The Arizona Court of Appeals

upheld the merits ruling on the ineffective-assistance claim. The court did not

reach the merits of the incompetency claims. Instead, the court held that those

claims were “waived” under Arizona Rule of Criminal Procedure 32.2(a)(3)

because they were not raised on direct appeal.

      Mr. Weeks filed this federal petition for a writ of habeas corpus under 28

U.S.C. § 2254. The district court held that Mr. Weeks procedurally defaulted the

incompetency claims. The court upheld the merits ruling on the ineffective-

assistance claim based on the deferential standard of review. See 28 U.S.C.
§ 2254(d)(1)–(2). The court issued a certificate of appealability on the

incompetency claims but not on the ineffective-assistance claim. We have

jurisdiction under 28 U.S.C. §§ 1291, 2253, and we affirm.

      The district court’s ruling was correct. In Martinez-Villareal v. Lewis, 80

F.3d 1301, 1306-07 (9th Cir. 1996), we held that an Arizona court’s application of

its waiver rule, Rule 32.2(a), to an incompetency claim was an independent and

adequate state ground that precluded federal habeas review absent a showing of

cause and prejudice. The decision is controlling. Mr. Weeks, like the petitioner

there, has not shown cause. This makes it unnecessary to decide whether he has

shown prejudice.

      AFFIRMED.
