                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 20 2012

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

                            FOR THE NINTH CIRCUIT


TYRONE EVERETT PAYNE,                            No. 11-35758

               Petitioner - Appellant,
                                                 D.C. No. 9:11-cv-00042-DWM
  v.

LEROY KIRKEGARD; Attorney General                MEMORANDUM *
of the State of Montana,

               Respondents - Appellees.


                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                          Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Montana state prisoner Tyrone Everett Payne appeals pro se from the district

court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as procedurally

defaulted. We have jurisdiction under 28 U.S.C. § 2253, and we vacate and

remand.

       Payne contends that Mont. Code Ann. § 46-23-507, as interpreted by the



          *
             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).
state supreme court in his appeal, is unconstitutional under the principles set forth

in Lambert v. California, 355 U.S. 225 (1957). Payne concedes that he did not

raise this claim in state court. The district court correctly determined that he had

failed to establish cause and prejudice for his default. See Coleman v. Thompson,

501 U.S. 722, 750 (1991); Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000)

(claim of ineffective assistance of counsel “must be presented to the state courts as

an independent claim before it may be used to establish cause for a procedural

default”) (internal quotations omitted).

      Payne also argues that he is actually innocent of the crime of conviction and,

therefore, excused from presenting his Lambert claim first in state court under the

“fundamental miscarriage of justice” exception to the procedural default doctrine.

This contention fails because Payne cannot show that he is factually innocent of

violating Mont. Code Ann. § 46-23-507. See Schlup v. Delo, 513 U.S. 298, 327-28

(1995) (to establish actual innocence excusing procedural default, petitioner must

show that in light of all the evidence, including excluded evidence and new

evidence that might be introduced by both sides, it is more likely than not that no

reasonable juror would have convicted him); Jaramillo v. Stewart, 340 F.3d 877,

882 (9th Cir. 2003) (“actual innocence means factual innocence, not mere legal

insufficiency”) (internal quotations omitted).




                                           2                                    11-35758
      Dismissal of Payne’s Lambert claim as procedurally defaulted was,

accordingly, proper if Payne’s Lambert claim would now be barred under a state

procedural rule that is “clear, consistently applied, and well-established,” so as to

provide an adequate and independent state procedural bar to relief. See Hanson v.

Mahoney, 433 F.3d 1107, 1113 (9th Cir. 2006) (internal quotations omitted).

Because the record leaves uncertain whether the district court considered the

adequacy and independence of any state procedural bar, we remand Payne’s

Lambert claim solely for consideration of that issue.

      Payne last argues that dismissal of his petition was improper because he

disavowed any claim of ineffective assistance of counsel; thus, his petition

contained only exhausted claims. This contention has merit. Because Payne has

steadfastly maintained that he does not wish to pursue a claim of ineffective

assistance of counsel and because he has abandoned the argument that counsel’s

ineffectiveness supplied cause for his procedural default, his petition must be

viewed as containing only exhausted claims: a Confrontation Clause claim and the

Lambert claim. The district court dismissed the petition without ruling on the

merits of the Confrontation Clause claim. On remand, the district court shall

consider that claim.

      All pending motions are denied.

      VACATED and REMANDED.


                                           3                                      11-35758
