                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 25 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MIKE DU TRIEU,                                  No.    17-55265

                Petitioner-Appellant,           D.C. No.
                                                2:12-cv-03365-VBF-AJW
 v.

ROBERT W. FOX, Warden,                          MEMORANDUM*

                Respondent-Appellee.

                  Appeal from the United States District Court
                       for the Central District of California
                 Valerie Baker Fairbank, District Judge, Presiding

                       Argued and Submitted March 6, 2019
                              Pasadena, California

Before: FERNANDEZ and M. SMITH, Circuit Judges, and CHRISTENSEN,**
Chief District Judge.

      California state prisoner Mike Du Trieu appeals the district court’s denial of

his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28 U.S.C.

§§ 1291 and 2253, and we affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.
       “The procedural default doctrine ‘bar[s] federal habeas when a state court

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

meet a state procedural requirement.’” Calderon v. United States District Court,

96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722,

729–30 (1991)). The California Supreme Court denied Trieu’s unexhausted

ineffective assistance of counsel claim by applying its procedural bar against

successive or piecemeal litigation by citing In re Clark, 5 Cal. 4th 750, 767–69

(Cal. 1993). Petitioner contends that the state incorrectly applied the Clark

procedural rule in this case; however, we may not review the legitimacy of that

decision. See Wood v. Hall, 130 F.3d 373, 379 (9th Cir. 1997) (“‘[a] federal court

may not re-examine a state court’s interpretation and application of state law.’”)

(quoting Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir. 1994)). Thus, because

the State properly raised this affirmative defense and Trieu did not put its adequacy

at issue, the bar applies to this case. See Bennett v. Mueller, 322 F.3d 573, 586

(9th Cir. 2003) (explaining that the petitioner bears the burden to put the

procedural rule at issue “by asserting specific factual allegations that demonstrate

the inadequacy of the state procedure, including citation to authority demonstrating

inconsistent application of the rule.”).

      Because we find Trieu’s claims procedurally defaulted, we need not reach

the merits of his petition.


                                           2                                    17-55265
AFFIRMED.




            3   17-55265
