                                                                                FILED
                            NOT FOR PUBLICATION                                 MAY 24 2013

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



                            FOR THE NINTH CIRCUIT


ANTHONY MARIO WATSON,                             No. 11-57122

              Petitioner - Appellant,             D.C. No. 3:01-cv-01780-AJB

  v.
                                                  MEMORANDUM*
MATTHEW CATE,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                         Argued and Submitted May 7, 2013
                                 Portland, Oregon

Before: HAWKINS, GRABER, and PAEZ, Circuit Judges.

       Following our remand in this case, Anthony Mario Watson appeals the

district court’s denial of his petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1.    Watson raises a newly exhausted “cumulative” ineffective assistance claim,

which was denied by the California Supreme Court in an order citing In re

Robbins, 18 Cal. 4th 770, 780 (1998), and In re Clark, 5 Cal. 4th 750 (1993). In

citing Robbins and Clark, the court signaled that the petition was untimely.

Because California’s untimeliness rule is an independent and adequate state

procedural ground for its denial, this claim is procedurally defaulted. Walker v.

Martin, 131 S. Ct. 1120, 1128 (2011). We reject Watson’s argument that his claim

is interwoven with federal law, because such a holding would swallow the rule

from Walker in every habeas petition that raises an ineffective assistance of

counsel claim. The California Supreme Court’s application of the timeliness

procedural bar was neither surprising nor unfair, given that all aspects of the

cumulative ineffectiveness claim were apparent from the trial record. Watson

cannot establish cause and prejudice to overcome procedural default. Coleman v.

Thompson, 501 U.S. 722, 753 (1991).

      Watson’s claim is also untimely under the AEDPA. The one-year statute of

limitations to bring this claim expired on December 20, 2002. The claim does not

relate back to the original petition, and the limitations period was not tolled. For

these reasons, we affirm the district court’s dismissal of this claim.




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2.    Watson’s remaining claim is one that this court has already considered. He

argues that his trial counsel was ineffective for failing to investigate Watson’s

alleged alibi. We previously affirmed the district court’s finding, following the

2004 evidentiary hearing, that trial counsel was a credible witness and Watson was

not, and that trial counsel did not know about potential alibi witnesses White and

Yard until after trial. Watson v. Rocha, 201 F. App'x 456, 458 (9th Cir. 2006)

(unpublished decision). We remanded for further proceedings regarding trial

counsel’s lack of investigation of potential alibi witness Douglas, whose name first

surfaced at the evidentiary hearing, and potential alibi witness Larose, who was

mentioned in White’s post-trial declaration. Id.

      After our remand, Watson returned to state court to exhaust the cumulative

ineffectiveness claim discussed above. When he returned to district court, all

parties properly agreed that the intervening decision in Cullen v. Pinholster, 131 S.

Ct. 1388 (2011), precluded any further evidentiary hearing. In light of Pinholster,

our 2006 remand order was unnecessary. In any event, we agree with Judge

Battaglia that further inquiry into counsel’s failure to investigate Larose and

Douglas would have only provided additional evidence with respect to the same

failure-to-investigate claim that had been adjudicated on the merits and the denial

of which we previously affirmed. Moreover, we note that information about Larose


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and Douglas would not have affected Judge Benitez’s conclusion that Watson and

White were not credible, that trial counsel was credible, that no credible alibi

existed, and that Watson had received effective assistance of counsel. Thus, we

also affirm the district court’s dismissal of this claim.

3.    Finally, in light of the intervening Pinholster decision, Judge Battaglia did

not violate the rule of mandate. Moreover, Watson’s argument that Judge Battaglia

violated the rule of mandate and should have held the hearing on Douglas and

Larose, despite Pinholster, does not square with his contention that Pinholster

requires that the evidence from the 2004 evidentiary hearing be

ignored—especially as Douglas was not mentioned in the state court or federal

court records until that hearing.

      AFFIRMED.




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