                                                                            FILED
                            NOT FOR PUBLICATION                              APR 11 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RONALD P. FOSTER,                                No. 09-16659

               Petitioner - Appellant,           D.C. No. 5:08-cv-04269-RMW

  v.
                                                 MEMORANDUM *
M. EVANS, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Ronald M. Whyte, District Judge, Presiding

                              Submitted April 5, 2011 **

Before:        B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       California state prisoner Ronald P. Foster appeals pro se from the district

court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 2253,*** and we affirm.

      Foster contends that the district court erred in dismissing his petition as

procedurally defaulted. Specifically, he argues that the state court’s determination

that his petition was successive does not constitute an adequate and independent

state bar. This contentions fails. Foster did not meet his burden of “asserting

specific factual allegations that demonstrate the inadequacy of the state procedure.”

See Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003).

      Foster further contends that the California Court of Appeal’s decision was

the last reasoned state court decision and that it constitutes an adjudication on the

merits. However, the record reflects that the California Superior Court’s judgment

citing In re Clark, 5 Cal.4th 750, 767 (1993), was the last reasoned decision and

that the California Court of Appeal’s decision was not an adjudication on the

merits. See Ylst v. Nonnemaker, 501 U.S. 797, 804 (1991); see also Lambert v.

Blodgett, 393 F.3d 943, 966-67, 969 (9th Cir. 2004) (for purpose of § 2254, a

dismissal on procedural grounds is not an adjudication on the merits).

      AFFIRMED.



      ***
              We certify for appeal, on our own motion, the issue of whether the
district court erred in dismissing Foster’s petition as procedurally defaulted. See
9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.
1999) (per curiam).

                                           2                                     09-16659
