                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 03 2012

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




                            FOR THE NINTH CIRCUIT



KEVIN BARTHOLOMEW,                                No. 10-15142

              Petitioner - Appellant,             D.C. No. 2:09-cv-01397-GEB-GGH

  v.
                                                  MEMORANDUM *
J. W. HAVILAND,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                      Argued and Submitted January 17, 2012
                            San Francisco, California

Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.

       Kevin Bartholomew appeals from the district court’s dismissal of his

petition for a writ of habeas corpus. The district court dismissed the petition as

procedurally defaulted because the state court’s dismissal rested on an adequate

and independent California state law ground. We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Generally, a federal court will not consider on habeas review a claim that the

state court resolved on adequate and independent state procedural grounds. See

Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v. Reed, 489 U.S. 255,

262 (1989). The state procedural rule must be well-established and consistently

applied. See Ford v. Georgia, 498 U.S. 411, 423-24 (1991). Here, because the

California Supreme Court summarily affirmed the California Court of Appeal’s

ruling, this court looks to the California Court of Appeal’s reasoning to determine

whether the claims are procedurally barred. See Ylst v. Nunnemaker, 501 U.S. 797,

803 (1991).

      The California Court of Appeal did not reach the merits of Bartholomew’s

due process claim because he had failed to exhaust his administrative remedies

through the prison appeals process, and the court cited to California state cases as

the basis for its decision. This exhaustion of administrative remedies requirement

is well-established and consistently applied in California law, thus meeting the

requirements for an adequate state ground. See, e.g., Abelleira v. Dist. Court of

Appeal, 17 Cal. 2d 280, 292-93 (1941). Because the rule does not involve any

federal analysis, it is an independent state ground. See Carter v. Giurbino, 385

F.3d 1194, 1197-98 (9th Cir. 2004). Therefore, Bartholomew’s claim is

procedurally defaulted. Any arguments that Bartholomew did, in fact, exhaust his


                                          2
administrative remedies, or that California did not properly apply its own

procedures, are not appropriate for this court’s consideration. See Poland v.

Stewart, 169 F.3d 573, 584 (9th Cir. 1999).

       A federal court may consider a procedurally-defaulted claim on habeas

review if the petitioner demonstrates either “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.” Coleman,

501 U.S. at 750; see also Harris, 489 U.S. at 262. Bartholomew does not argue

and cannot demonstrate that failure to consider his claims will result in a

fundamental miscarriage of justice.

       Nor can Bartholomew establish actual prejudice resulting from any alleged

violation of federal law. To succeed, Bartholomew must demonstrate errors that

“‘worked to his actual and substantial disadvantage, infecting his entire trial with

error of constitutional dimensions.’” Correll v. Stewart, 137 F.3d 1404, 1415 (9th

Cir. 1998) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). Nothing

Bartholomew has alleged, if proven true, would rise to the level of actual prejudice.

       Even if Bartholomew could prove he did not receive the “written statement

of the factfinders as to the evidence relied upon and the reasons for the disciplinary

action taken,” required by Wolff v. McDonnell, 418 U.S. 539, 563 (1974), and


                                             3
therefore did not bring a timely appeal of the credit forfeiture decision, his

arguments do not suggest such an appeal would have been successful. Similarly,

even if Bartholomew could prove he did not have the ability “to call witnesses and

present documentary evidence in his defense,” as is also required by Wolff, id. at

566, he has not indicated that any potential witnesses would have led to a different

outcome, either in the disciplinary hearing or any subsequent proceedings. Finally,

according to the Supreme Court, “[w]e think that the Constitution should not be

read to impose the [confrontation] procedure at the present time and that adequate

bases for decision in prison disciplinary cases can be arrived at without

cross-examination.” Id. at 558. In any event, Bartholomew does not demonstrate

how his failure to cross-examine the reporting employee prejudiced him.

      Because the cause and prejudice exception allowing federal court review of

a procedurally-defaulted habeas claim requires the presence of both elements, and

Bartholomew did not allege actual prejudice, we do not reach the issue of cause.

AFFIRMED.




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