                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 30 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


DAVID CHARLES SCHUBERT,                          No. 09-35550

              Petitioner - Appellant,            D.C. No. 2:08-cv-00660-RSL

  v.
                                                 MEMORANDUM*
KENNETH QUINN,

              Respondent - Appellee.


                  Appeal from the United States District Court
                     for the Western District of Washington
                 Robert S. Lasnik, Chief District Judge, Presiding

                       Argued and Submitted June 10, 2011
                               Seattle, Washington

Before: REINHARDT, W. FLETCHER, and RAWLINSON, Circuit Judges.

       Washington state prisoner David Schubert appeals the district court’s denial

of his habeas corpus petition seeking relief from his conviction for second-degree

murder and his 164-month sentence, which is scheduled to terminate in September



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
2011. We have jurisdiction pursuant to 28 U.S.C. § 2253. We reverse and

remand.

      The district court erred by concluding that Schubert procedurally defaulted

federal habeas claims 2, 3, 4, 5, 8, and 9. The last reasoned state decision, that of

the Washington Supreme Court Commissioner denying review of Schubert’s

personal restraint petition (“PRP”), declined to consider these claims on the ground

that they had been raised and rejected on direct appeal, and so could not be

relitigated in a PRP. See, e.g., In re Taylor, 717 P.2d 755, 758 (Wash. 1986) (en

banc). But “[w]hen a state court declines to review the merits of a petitioner’s

claim on the ground that it has done so already, it creates no bar to federal review. .

. . When a state court refuses to readjudicate a claim on the ground that it has been

previously determined, the court’s decision does not indicate that the claim has

been procedurally defaulted.” Cone v. Bell, 129 S. Ct. 1769, 1781 (2009). See

also, e.g., Ylst v. Nunnemaker, 501 U.S. 797, 804 n.3 (1991); Pirtle v. Morgan, 313

F.3d 1160, 1168 (9th Cir. 2002).

      Nor can we conclude that these claims are procedurally defaulted on the

ground that Schubert waived them by failing to present them to the Washington

Supreme Court on direct appeal. That court’s Commissioner’s order denying

review of Schubert’s PRP held that these claims had been previously determined,


                                           2
not that they had been waived. “When a state court declines to find that a claim

has been waived by a petitioner’s alleged failure to comply with state procedural

rules, our respect for the state-court judgment counsels us to do the same. . . . [W]e

have no . . . duty to apply state procedural bars where state courts have themselves

declined to do so.” Cone, 129 S. Ct. at 1782; see also Harris v. Reed, 489 U.S.

255, 263 (1989).

      The state conceded in its answer to Schubert’s habeas petition in the district

court that all of Schubert’s federal claims were exhausted. Respondent’s Answer

and Memorandum of Authorities at 8, Schubert v. Quinn, No. 08-CV-00660-RSL

(W.D. Wash. July 31, 2008), ECF No. 14. For that reason, the district court also

erred by concluding that federal habeas claim 7 was procedurally defaulted on the

ground that claim 7 had not been properly exhausted, but would now be

considered barred by the Washington courts. Because the state expressly

conceded that Schubert has satisfied the exhaustion requirement, see 28 U.S.C. §

2254(b)(3), claim 7 is not procedurally defaulted under the rule of Coleman v.

Thompson. See 501 U.S. 722, 735 n.* (1991).

      We decline to expand the certificate of appealability to include Schubert’s

uncertified issues. See 9th Cir. R. 22-1(e). We agree with the Washington

Supreme Court Commissioner that Schubert has not carried his “heavy burden” of


                                          3
showing “actual, nonspeculative prejudice” because of preindictment delay.

United States v. Corona-Verbera, 509 F.3d 1105, 1112 (9th Cir. 2007). As a

result, no evidentiary hearing is necessary to investigate the state’s reasons for the

delay. Id. at 1113 n.2. Nor is Schubert entitled to an evidentiary hearing on his

claim that the state withheld transcripts of testimony given by his sons, in

violation of Brady v. Maryland, 373 U.S. 83 (1963). Even if the state suppressed

the transcripts — which we doubt, because the transcripts were found in

Schubert’s counsel’s files — Schubert has not shown prejudice. Schubert knew

that his sons believed that they had seen their mother leave the family’s home, but

chose not to call them as trial witnesses. We fail to see how disclosure of the

transcripts could have altered that choice. Finally, the Washington Supreme Court

Commissioner’s adjudication of Schubert’s sufficiency of the evidence claim was

not unreasonable. See McDaniel v. Brown, 130 S. Ct. 665, 673-74 (2010).

      In sum, we reverse and remand to allow the district court to consider federal

habeas claims 2, 3, 4, 5, 7, 8, and 9 on the merits, but we do not expand the

certificate of appealability.

      REVERSED AND REMANDED.




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