                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               FEB 01 2011

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

VALERIE BEIDLER,                                 No. 08-56467

             Petitioner - Appellant,             D.C. No. 3:05-cv-01384-DMS-
                                                 CAB
  v.

GWENDOLYN MITCHELL, Warden; et                   MEMORANDUM*
al.,

             Respondents - Appellees.


                   Appeal from the United States District Court
                      for the Southern District of California
                    Dana M. Sabraw, District Judge, Presiding

                     Argued and Submitted December 6, 2010
                              Pasadena, California

Before: B. FLETCHER, BERZON, and CALLAHAN, Circuit Judges.

       Valerie Beidler was charged in state court with committing murder and

related crimes. During jury selection, the prosecutor excused the only two African-

American prospective jurors, and then excused the only African-American

prospective alternate juror. Defense counsel objected that the prospective alternate


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
was struck for racial reasons, but after conducting a Batson inquiry, the trial judge

determined that this was not so. Beidler was tried and convicted, and after several

state court appeals and petitions, she filed a habeas petition in the district court

pursuant to 28 U.S.C. § 2254. The district court denied the petition, and we

granted a Certificate of Appealability on the issue of “whether the district court

properly denied Beidler’s Batson claim, as to juror numbers 12 and 69, as waived.”

ER 1. We affirm the district court’s denial of habeas relief.1

      The Supreme Court has explained:

      In all cases in which a state prisoner has defaulted his federal claims
      in state court pursuant to an independent and adequate state
      procedural rule, federal habeas review of the claims is barred unless
      the prisoner can demonstrate cause for the default and actual prejudice
      as a result of the alleged violation of federal law, or demonstrate that
      failure to consider the claims will result in a fundamental miscarriage
      of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991).

      Here, when rejecting Beidler’s arguments regarding the peremptory strikes

of Juror Nos. 12 and 69, the California Court of Appeals stated:

      On this record, the question is not whether defense counsel timely
      objected to the prosecutor’s challenges to juror nos. 12 and 69, it is
      whether his comments can reasonably be construed as an objection at
      all. We do not read counsel’s statements as an objection to the


      1
         Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
                                            2
      prosecutor’s peremptory challenges to those jurors; indeed, counsel
      admitted he had earlier failed to object to the challenges and he did
      not make any corresponding attempt to cure his perceived failure.
      There being no objection, the trial court was not required to assess
      whether counsel stated a prima facie case of discrimination, or ask the
      prosecutor to provide any justification for his challenges to those
      jurors. By failing to raise an objection to those challenges before the
      trial court, [Beidler and her co-defendant] waived the claim for
      appeal. (People v. Anderson (2001) 25 Cal. 4th 543, 568, citing
      People v. Bolin (1998) 18 Cal. 4th 297, 316, and People v. Montiel
      (1993) 5 Cal. 4th 877, 909.)

ER 183 (emphasis in original).2

      We read this statement as the invocation of an independent and adequate

California state procedural rule that objections not made in the trial court are

considered waived, and cannot be raised on appeal. See, e.g., Doers v. Golden

Gate Bridge, Hwy. & Transp. Dist., 588 P.2d 1261, 1263, n.1 (Cal. 1979) (noting

that “[a]n appellate court will ordinarily not consider procedural defects or

erroneous rulings, in connection with relief sought or defenses asserted, where an



      2
          The Court of Appeal also stated:

      Anticipating a claim for ineffective assistance of counsel on this
      ground, we observe based on the questionnaires submitted by a juror
      nos. 12 and 69 the prosecutor had ample non-discriminatory reasons
      for their excuse. Thus, were we to address the question we would
      conclude Gerardo’s counsel was not ineffective for failing to make a
      meritless objection to those challenges.

ER 183, n.7.
                                             3
objection could have been but was not presented to the lower court by some

appropriate method . . . .”) (internal quotations omitted). Accordingly, to obtain

habeas relief in a federal court, Beidler must show “cause” to excuse her default in

state court, and actual “prejudice” as a result of the alleged violation of federal law,

or she must demonstrate that failure to consider the claims would result in a

“fundamental miscarriage of justice.” See Coleman, 501 U.S. at 750.

      Beidler has not shown “cause,” “prejudice,” or a “fundamental miscarriage

of justice.” Beidler argues “cause” based on her trial counsel’s ineffectiveness in

failing to object to the prosecutor’s peremptory strikes of Juror Nos. 12 and 69.3

As she failed to present this “ineffective assistance of counsel” argument to the

district court, however, we will not consider it on appeal. See Belgarde v.




      3
          The California Court of Appeal’s conclusion that counsel failed to object
to the strikes of Juror Nos. 12 and 69 is supported by the record. Although counsel
referenced Juror Nos. 12 and 69 in his objection to the strike of Juror No. 7, at no
point did counsel actually extend his objection to apply to Juror Nos. 12 and 69.
The most that he said in this regard was “perhaps there should have been a Batson
objection” as to Juror Nos. 12 and 69. Even when the trial judge made clear that
counsel’s objection was being considered as an objection to the strike of Juror No.
7 only, and conducted a Batson inquiry limited to Juror No. 7, counsel did not
suggest that his objection applied to the strikes of Juror Nos. 12 and 69.
                                           4
Montana, 123 F.3d 1210, 1216 (9th Cir. 1997).4 Beidler’s contention of

“prejudice” is belied by a record that suggests that the prosecutor had valid, non-

discriminatory reasons for striking Jurors Nos. 12 and 69.5 Beidler has also failed

to demonstrate a “fundamental miscarriage of justice” because she makes no claim

of actual innocence. See Schlup v. Delo, 513 U.S. 298, 321 (1995). Moreover,

there appears to have been more than sufficient evidence to convict Beidler. Under

these circumstances, there is no ground for relieving Beidler from the

consequences of failing to challenge in state court the prosecutor’s striking of Juror

Nos. 12 and 69.

      For these reasons, the district court’s denial of Beidler’s petition is

AFFIRMED.




      4
         At the very least, Beidler had to have known of a possible claim for
ineffective assistance of trial counsel by the time of the Court of Appeal’s opinion,
which mentioned that claim. Nonetheless, she never raised such a claim in any of
her subsequent state court filings or in the district court, and does not allege that
there was anything preventing her from doing so.
      5
         Juror No. 12 commented that seeing graphic photos of the murder victim
would “terrif[y]” her, and that she did not know if she could “deal with” such
photos. She also expressed extreme ambivalence about whether she was willing to
serve as a juror on Beidler’s case. Juror No. 69 had a significant history of
unpleasant run-ins with the law and had received discipline from the military.
                                           5
