                                                                             FILED
                            NOT FOR PUBLICATION                               APR 21 2011

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




                            FOR THE NINTH CIRCUIT



JUAN CARLOS AYALA SANCHEZ,                        No. 08-17044

              Petitioner - Appellant,             D.C. No. 2:06-cv-00824-ALA-
                                                  GGH
  v.

LARRY SCRIBNER, Warden,                           MEMORANDUM *

              Respondent - Appellee.



                   Appeal from the United States District Court
                        for the Eastern District of California
                 Arthur L. Alarcon, Senior Circuit Judge, Presiding

                        Argued and Submitted April 12, 2011
                             San Francisco, California

Before: FERNANDEZ and RAWLINSON, Circuit Judges, and WELLS, Senior
District Judge.**

       Petitioner Juan Carlos Ayala-Sanchez (Sanchez) challenges the district

court’s dismissal of his federal habeas petition for failure to exhaust state remedies.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Lesley Wells, Senior U.S. District Judge for the
Northern District of Ohio, sitting by designation.
      Citing In re Wessley W., 181 Cal. Rptr. 401 (1981), as modified, In re Swain,

34 Cal.2d 300 (1949), and People v. Duvall, 9 Cal.4th 464 (1995), the California

Supreme Court denied Sanchez’s state habeas petition as procedurally deficient.

After independently reviewing Sanchez’s state petition, we conclude that the

petition was procedurally deficient under California law, as Sanchez failed to

allege his claims with the requisite particularity, failed to attach reasonably

available documents, and failed to adequately allege that he was in custody. See In

re Swain, 34 Cal.2d at 304; Duvall, 9 Cal.4th at 474; In re Wessley W., 181 Cal.

Rptr. at 403-04.

      Because Sanchez’s state habeas petition was procedurally deficient, the

district court properly dismissed Sanchez’s federal habeas petition for failure to

exhaust state remedies. See Harris v. Superior Ct., 500 F.2d 1124, 1128 (9th Cir.

1974) (en banc) (“If the denial of the habeas corpus petition includes a citation of

an authority which indicates that the petition was procedurally deficient . . . then

the available state remedies have not been exhausted . . .”) (citations omitted); see

also Gaston v. Palmer, 417 F.3d 1030, 1039 (9th Cir. 2005), modified on other

grounds, 447 F.3d 1165 (9th Cir. 2006) (“In light of its citations to Swain and

Duvall, we read the California Supreme Court’s denial of [the petitioner’s] . . .




                                           2
habeas application as, in effect, the grant of a demurrer, i.e., a holding that [the

petitioner] had not pled facts with sufficient particularity.”).1

      Dismissal of Sanchez’s petition is not precluded by Coleman v. Thompson,

501 U.S. 722 (1991). Coleman applies to procedural default rather than procedural

deficiency. See id. at 731-32.

      AFFIRMED.




      1
          Sanchez concedes that his claim for ineffective assistance of counsel was
properly dismissed.

                                            3
