                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 06 2011

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




                            FOR THE NINTH CIRCUIT



ALEXANDER JONES,                                 No. 11-35008

               Petitioner - Appellant,           D.C. No. 6:07-cv-01474-AA

  v.
                                                 MEMORANDUM *
MARK NOOTH,

               Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                      Ann L. Aiken, Chief Judge, Presiding

                          Submitted September 27, 2011 **

Before:        SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

       Oregon state prisoner Alexander Jones appeals 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).
      Jones contends the district court erred in concluding that he procedurally

defaulted his claim that his trial lawyer rendered ineffective assistance of counsel.

Before the Oregon Supreme Court, however, Jones did not fairly present his claim

that counsel failed to raise Jones’s cognitive deficiencies to negate the specific

intent element of the charged offenses, see Castillo v. McFadden, 399 F.3d 993,

998-1000 (9th Cir. 2005), and Jones would now be barred from doing so, see Or.

Rev. Stat. § 138.510(3); Smith v. Baldwin, 510 F.3d 1127, 1138-39 (9th Cir. 2007).

Jones does not contend that there was cause for and prejudice from his default, or

that a fundamental miscarriage of justice will arise from the district court’s failure

to consider the merits of his claim. See Smith, 510 F.3d at 1139.

      AFFIRMED.




                                           2                                     11-35008
