                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              NOV 13 2009

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

BARRETTE LUKE ENNO,                              No. 07-35192

             Petitioner - Appellant,             D.C. No. CV-04-00596-BLW

  v.
                                                 MEMORANDUM *
RANDY BLADES; et al.,

             Respondents - Appellees.


                   Appeal from the United States District Court
                             for the District of Idaho
                    B. Lynn Winmill, District Judge, Presiding

                        Argued and Submitted July 6, 2009
                                Portland, Oregon

Before: PREGERSON, RYMER, and TASHIMA, Circuit Judges.

       Barrette Luke Enno appeals dismissal of his 28 U.S.C. § 2254 petition. We

certified three issues, and conclude that a Certificate of Appealability (COA) was

improvidently granted as to one and that the others fail. Accordingly, we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                          I

      Enno withdrew Claim Two, which concerned “death qualifying” guilt-phase

jurors, in district court, and sought no COA as to it. In these circumstances we

believe our COA should not have issued and we vacate it. See Phelps v. Alameda,

366 F.3d 722, 728 (9th Cir. 2004). In any event, Enno would not be entitled to

relief even were the issue preserved. The Idaho Supreme Court’s decision was

neither contrary to, nor an unreasonable application of, clearly established federal

law, or an unreasonable determination of the facts in light of the evidence

presented. See Buchanan v. Kentucky, 483 U.S. 402, 414-20 (1987); Lockhart v.

McCree, 476 U.S. 162, 165, 173-78, 183-84 (1986); Wainwright v. Witt, 469 U.S.

412, 419-25 (1985).



                                          II

      Enno lumps together the two parts of his ineffective assistance of counsel

claim – one having to do with whether his due process rights were offended by the

state court’s rejection of a post-conviction stipulation, and the other with whether

trial counsel failed to advise him of a possible plea agreement. The former is not

exhausted, 28 U.S.C. § 2254(b)(1)(A), as Enno’s post-conviction petitions relied

entirely on state law and did not apprise the Idaho courts that he was making a


                                          2
claim under the United States Constitution. See Baldwin v. Reese, 541 U.S. 27, 29-

34 (2004); Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Zichko v.

Idaho, 247 F.3d 1015, 1020-22 (9th Cir. 2001). In any event, a civil court is not

required to accept a stipulation, let alone one of ambiguous import. Neither Old

Chief v. United States, 519 U.S. 172 (1997), nor Greenlaw v. United States, ---

U.S. ----, 128 S. Ct. 2559 (2008), upon which Enno relies, articulates any such

rule.

        So far as communication of a plea offer is concerned, Enno has not shown

that the state post-conviction court’s findings of fact, made after three evidentiary

hearings and upheld as not clearly erroneous by the Idaho Court of Appeals, were

unreasonable in light of the evidence presented. The court could reasonably credit

counsel’s testimony more than Enno’s given Enno’s memory difficulties and

documentary support for counsel’s position. In light of these findings, the decision

that counsel was not ineffective is not clearly contrary to Strickland v. Washington,

466 U.S. 668, 687 (1984).

        AFFIRMED.




                                          3
                                                                                    FILED
Enno v. Blades, No. 07-35192                                                        NOV 13 2009

                                                                              MOLLY C. DWYER, CLERK
TASHIMA, Circuit Judge, concurring in the judgment:                            U.S. COURT OF APPEALS



      I concur in the judgment affirming the dismissal of Enno’s habeas petition

by the district court, and I concur in most of the reasoning of the majority. I write

separately briefly to express my differing analysis on only two points.

      First, in Part I, I would not vacate our COA as improvidently issued, but

would reach the merits, as to which I agree with the majority’s alternative analysis

in Part I. Although it is true that Enno attempted to withdraw his “death qualified

jury” claims, the district court held that “because Petitioner is unrepresented, the

Court shall review the propriety of dismissal of these claims.” It then reviewed

those claims and denied them on the merits. Because the district court reached the

merits, we should do the same without questioning the propriety of issuing a COA

on this issue. Moreover, it seems inconsistent to hold as to this claim that Enno

waived it, i.e., that the district court was required to accept the withdrawal of the

claim even though the district court expressly declined to accept that waiver, and

then to hold in Part II that the state trial court was not required to accept the

parties’ stipulation. If a trial court is required to accept a pro se party’s waiver,

why isn’t it also required to accept the parties’ stipulation?

      Second, as for the disposition in Part II, I would neither apply the exhaustion

doctrine to Enno’s claim based on the state court’s rejection of a stipulation in his
post-conviction proceeding nor reach the merits of that claim. A § 2254 petition

can reach only the validity, under the Constitution or federal law, of a state

prisoner’s detention, i.e., his conviction or sentence. It is not the proper vehicle for

reviewing the adequacy of process in a state post-conviction proceeding, which is

what Enno attempts to do by this claim. Whatever his remedy may be for asserted

errors of constitutional dimension in his state post-conviction proceeding, it is not

under § 2254. See Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989) (per curiam)

(holding that “a petition alleging errors in the state post-conviction review process

is not addressable through habeas corpus proceedings”). I would, therefore, affirm

the denial of relief for the rejection-of-stipulation claim because that claim was not

properly brought under § 2254.

      With these reservations, I concur in the judgment.




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