Free Mandate of 9th Circuit - District Court of Arizona - Arizona

UNITED STATES COURT OF APPEALS
' ‘ FOR THE NINTH CIRCUIT
KENNETH CHANCE DEAN, No. 04-15463
D.C. No. CV-00-00628-JAT
Petitioner - Appellant,
V.
JUDGMENT
TERRY L. STEWART, Director; et al.,
Respondents - Appellees.
Appeal from the United States District Court for the District of Arizona
(Phoenix).
This cause came on to be heard on the Transcript of the Record from the
United States District Court for the District of Arizona (Phoenix) and was duly
submitted.
On consideration whereoi it is now here ordered and adjudged by this
Court, that the judgment ofthe said District Court in this cause be, and hereby is
AFFIRMED.
Filed and entered Thursday, December 09, 2004
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Case 2:00—cv—00628-JAT Document 39 Filed 2/15/2005 Page 1 of 4

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- Nor ron PUBLICATION 050 00 2004
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UNITED STATES COURT OF APPEALS 0-0- 000** 0P APPPAL0
· FOR THE NINTH CIRCUIT
KENNETH CHANCE DEAN, No. 04-1 5463
Petitioner - Appellant, D.C. No. CV-00-00628-JAT
MEMORANDUM ~
TERRY L. STEWART, Director; et al.,
Respondents - Appellees.
Appeal from the United States District Court
1 for the District of Arizona
James A. Teilborg, District Judge, Presiding
I Submitted December 6, 2004"
Before: GOODWIN, WALLACE, and TROTT, Circuit Judges.
Arizona state prisoner Kenneth Chance Dean appeals pro se the district’s
denial of his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28
U.S.C. § 2253, and we affirm.
* This disposition is not appropriate for publication and may not be cited
to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
“ This panel unanimously tinds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
Case 2:00—cv—00628-JAT Document 39 Filed 12/15/2005 Page 2 of 4

‘ Dean contends that the district court erred in finding that his Sixth
Amendment claims based on substitution of counsel and right to self-
representation were procedurally defaulted} We disagree. A federal court may
rely upon the state court’s procedural bar if it is independent and adequate. See 1
Coleman v. Thompson, 501 U.S. 722, 729 (1991). Here, the state court found
these claims barred by Ariz. R. Crim. P. 32.2(a)(3) because Dean did not raise
_ them in his direct appeal. Seesfftewart v. Smith, 536 U.S. 856, 860-61 (2002) (per , ...._. .....
curiam); Ariz. R. Crim. P. 32.2(a)(3). Because the claims are procedurally
defaulted, this court cannot review them unless Dean demonstrates either cause
and prejudice or a fundamental miscarriage of justice, which he has not done. See
Teague v. Lane, 489 U.S. 288, 298 (1989).
Dean also contends that his due process rights were violated when the state
court failed to grant him an evidentiary hearing on the aforementioned claims. In
order to qualify for an evidentiary hearing, appellant must both (1) "al1ege facts, ,
. which, if proven, would entit1e.hjmto reliei and (2)-show,_thathendidngt receive _a ww,
full and fair hearing in a state court, either at the time of trial or in a collateral
proceeding? See Belmontes v. Woodford, 350 F.3d 861, 890-91 (9th Cir. 2003).
' We address only the claims for which a certificate of appealability was
granted. See 9th Cir. R. 22-1; fhivala v. Wood, 195 F.3d 1098, 1102-03 (9th Cir.
1999).
2
Case 2:00-cv-00628-JAT Document 39 Filed 12/15/2005 Page 3 of 4

L i W t `
Here, Dean has failed to allcgc any facts, which if proven, would entitle him to
relief Thus, an evidentiary hearing was not mcritcd. See id.
AFFIRMCED.
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