                                                                           FILED
                           NOT FOR PUBLICATION                                JUL 23 2015

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



                            FOR THE NINTH CIRCUIT


NATHAN MCKINNEY,                                 No. 13-55032

              Petitioner - Appellant,            D.C. No. 2:02-cv-04493-MMM-
                                                 PJW
 v.

KEVIN CHAPPELL, Warden,                          MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                        Argued and Submitted July 6, 2015
                              Pasadena, California

Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.

      Nathan McKinney was convicted in California state court of domestic abuse-

related charges, including attempted murder. At trial, the State introduced

evidence of prior domestic abuse incidents, and the court instructed the jury to

credit that evidence for the purpose of finding that McKinney had a disposition to



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
commit similar offenses if it was proven “by a preponderance of the evidence.” In

his first amended federal habeas petition, McKinney claims that the “instruction

that allowed the jury to draw an inference of criminal propensity from other crimes

evidence in a murder trial” violated his rights because it “lower[ed] the burden of

proof from guilty beyond a reasonable doubt to . . . preponderance of the

evidence.” The district court concluded that McKinney’s jury instruction claim

was procedurally defaulted. We reverse and remand.

      McKinney raised his jury instruction claim in his first state habeas petition,

which he filed pro se. In that petition, McKinney argued that “[i]t is . . . likely that

the jurors used the present incident to find by a preponderance of the evidence that

the prior domestic violent incidents took place.” McKinney wrote that such a

“result would be contrary to the instructions given to the jury.” But McKinney

went on to contend (as lawyers would say, “in the alternative”) that the jury

instruction itself invited the result. He wrote, “The jury was instructed . . . they

could infer if appellant ‘had a disposition to commit the same or similar type

offenses,’ that he was likely to commit and did commit the crime or crimes of

which he [was] accused.” The first petition was essentially as specific as the fourth

state petition with regard to the instructional issues — perhaps more so, as the first

petition expressly mentioned the burden of proof issue, while the fourth did not,


                                           -2-
although it cited cases pertinent to that point. The California Supreme Court

dismissed the first petition with a citation to In re Dixon, 264 P.2d 513 (Cal. 1953),

and to another state procedural bar not at issue.

      Federal courts cannot grant habeas relief if “(1) ‘a state court has declined to

address a prisoner’s federal claims because the prisoner had failed to meet a state

procedural requirement,’ and (2) ‘the state judgment rests on independent and

adequate state procedural grounds.’” Walker v. Martin, 562 U.S. 307, 316 (2011)

(alteration omitted) (quoting Coleman v. Thompson, 501 U.S. 722, 729–30 (1991)).

“[A]n inadequate state law ground will not bar federal review of a claim’s merits.”

Lee v. Jacquez, No. 12-56258, 2015 WL 3559125, at *2 (9th Cir. June 9, 2015).

      In Lee, we recently concluded that the State failed to demonstrate Dixon’s

adequacy as a procedural bar. Id. at *8. We noted that California “has never

shown Dixon’s adequate application.” Id. at *7. Despite evidence of frequent

applications of Dixon, the evidence the State presented in Lee failed to “indicate[]

the consistency of the rule’s application.” Id. The State thus failed to prove in Lee

the adequacy of the procedural bar invoked in Dixon. The Dixon bar was applied

in Lee during the same period it was applied in this case.

      McKinney did not provide specific evidence of Dixon’s inadequacy, but

after Lee it is not McKinney’s burden to do so. See King v. LaMarque, 464 F.3d


                                          -3-
963, 967 (9th Cir. 2006) (holding that “simply contesting the adequacy of a state

rule” is enough to meet the petitioner’s burden of showing a rule is inadequate if

this Court “previously found the rule to be too ambiguous to bar federal review

during the applicable time period”). The burden is on the State to prove Dixon’s

adequacy. We need not revisit the issue here. Based on Lee, we conclude that

Dixon was not an adequate state procedural bar in this case. We remand to allow

the district court to consider the merits of McKinney’s jury instruction claim.

      REVERSED and REMANDED.




                                         -4-
