NOT FOR PUBLICATION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.
-2-
