                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 02 2010

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




                            FOR THE NINTH CIRCUIT



JAMES LEWIS DIXIE,                               No. 08-16447

               Petitioner - Appellant,           D.C. No. 3:07-CV-00129-VRW

  v.
                                                 MEMORANDUM *
ROBERT A. HOREL, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Vaughn R. Walker, Chief Judge, Presiding

                            Submitted August 23, 2010 **

Before:        LEAVY, HAWKINS, and THOMAS, Circuit Judges.

       California state prisoner James Lewis Dixie appeals pro se from the district

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

jurisdiction under 28 U.S.C. § 2253, and we affirm.




          *
             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).
      Dixie contends that the district court erred by dismissing his petition as

procedurally defaulted. This contention fails because the record supports the

district court’s conclusion that Dixie’s claims are barred by a state rule, which was

actually relied upon by the state court, and that is independent of federal law and

adequate to support the judgment. See Carter v. Giurbino, 385 F.3d 1194,

1196-1197 (9th Cir. 2004); see also Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)

(“Where there has been one reasoned state judgment rejecting a federal claim, later

unexplained orders upholding that judgment or rejecting the same claim rest upon

the same ground.”). Additionally, Dixie has not established “cause for the default

and actual prejudice as a result of the alleged violation of federal law, or that

failure to consider the claims will result in a fundamental miscarriage of justice.”

See Carter, 385 F.3d at 1196-1197.

      AFFIRMED.




                                           2                                        08-16447
