Opinion
Argued and Submitted Oct. 4, 2004.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Gretchen Fusilier, Esq., Carlsbad, CA, for Petitioner-Appellant.
Michael Richardson, Tehachapi, CA, pro se.
April S. Rylaarsdam, AGCA-Office of the California Attorney General, Los Angeles, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Central District of California, Ronald S.W. Lew, District Judge, Presiding.
Before HUG, T.G. NELSON, and WARDLAW, Circuit Judges.
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.
Michael Richardson appeals the district court's denial on procedural grounds of two of his habeas claims: 2(b) and 4. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm in part, reverse in part, and remand.
The parties agree that claim 2(b) is not procedurally barred. Accordingly, we reverse the district court's judgment as to claim 2(b) and remand that claim to the district court for consideration on the merits. However, Claim 4 is procedurally barred by the Ex parte Lindley rule. Therefore, we affirm the judgment of dismissal as to claim 4.
29 Cal.2d 709, 177 P.2d 918, 926-27 (1947).
Carter v. Giurbino, 385 F.3d 1194, 2004 WL 2220970 (9th Cir.2004).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.