                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 10 2012

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



                           FOR THE NINTH CIRCUIT


JONATHON SILVERSKY,                              No. 10-35317

              Petitioner - Appellant,            D.C. No. 1:10-cv-00012-RFC-
                                                 CSO
  v.

MARTIN FRINK; ATTORNEY                           MEMORANDUM*
GENERAL OF THE STATE OF
MONTANA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Montana
                 Richard F. Cebull, Chief District Judge, Presiding

                          Submitted December 6, 2012**
                              Seattle, Washington

Before: TALLMAN and WATFORD, Circuit Judges, and GLEASON, District
Judge.***



        *
             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).
        ***
              The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
      Montana state prisoner Jonathon Silversky (“Silversky”) appeals the district

court’s summary denial in part and dismissal in part of his 28 U.S.C. § 2254

habeas corpus petition pursuant to the provisions of Rule 4 of the Rules Governing

Section 2254 Cases. Silversky contends that, in pursuing post-conviction relief

before the Montana Supreme Court, he was denied an impartial tribunal in

violation of the due process clause. We have jurisdiction under 28 U.S.C. § 2253

and 28 U.S.C. § 1291, and we affirm the district court’s summary denial in part

and dismissal in part.

      Silversky does not allege that the Montana Supreme Court’s decision was

contrary to, or an unreasonable application of, clearly established federal law, or

relied upon an unreasonable determination of the facts in light of the evidence

presented. Instead, Silversky “alleg[es] errors in the state post-conviction review

process [which are] . . . not addressable through habeas corpus proceedings.”

Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989). A federal habeas petition is not

the proper vehicle for addressing the adequacy of process provided to Silversky in

state post-conviction proceedings.

      Silversky never presented the operative facts of his judicial bias claim to the

Montana state courts, and the statute of limitations for filing a petition for post-

conviction relief has lapsed. Mont. Code Ann. § 46-21-102. Silversky’s judicial


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bias claim is procedurally barred, and Silversky has not alleged cause and

prejudice to overcome that bar. Silversky has not provided any evidence of cause

by suggesting that “something external to [him], something that cannot fairly be

attributed to him” prevented him from filing a timely petition for post-conviction

relief in state court. Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998)

(quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). Silversky has also not

established prejudice. The Supreme Court has never held that prejudice

automatically ensues when one judge on a multi-judge panel is biased, if that judge

does not cast a decisive vote. See Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 827

(1986).

      Silversky’s habeas petition was properly denied pursuant to the summary

procedures in Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4,

district courts are required to summarily dispose of a case if “it plainly appears

from the petition and any attached exhibits that the petitioner is not entitled to

relief in the district court.” This Court has recognized that “Congress envisioned

district courts taking an active role in summarily disposing of facially defective

habeas petitions.” Boyd, 147 F.3d at 1127. Silversky’s judicial bias claim is

procedurally defaulted and is not addressable in a § 2254 petition. The remaining




                                           3
claims in Silversky’s petition were found to be successive under 28 U.S.C. §

2244(b), or not cognizable in federal habeas corpus proceedings.

      In light of these findings, we AFFIRM the district court’s summary denial

in part and dismissal in part of Silversky’s 28 U.S.C. § 2254 habeas corpus

petition.




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