Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a).
D.C. No. CV-93-01280-CAM
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the District of Arizona, C.A. Muecke, District Judge, Presiding.
Before WALLACE, FARRIS, and T.G. NELSON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Rupert Edward Gaffney, an Arizona state prisoner, appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for trafficking in stolen property and theft. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo a district court's dismissal of a habeas corpus petition, see Morales v. Calderon, 85 F.3d 1387, 1389 n. 6 (9th Cir.1996), and we affirm.
Gaffney contends that his due process rights were violated by the admission of wiretap evidence during his trial. We decline to address the merits of this contention because the Arizona Court of Appeals determined that Gaffney waived this claim by failing to object at trial. Accordingly, Gaffney has procedurally defaulted this claim. See Sturgis v. Goldsmith, 796 F.2d 1103, 1106 (9th Cir.1986). Gaffney also argues that his due process rights were violated when false evidence was submitted to the grand jury to obtain his indictment. However, Gaffney procedurally defaulted this claim because he failed to present it to the Arizona courts, and would now be barred from doing so. See White v. Lewis, 874 F.2d 599, 602 (9th Cir.1989); State v. Sanderson, 898 P.2d 483, 491 (Ariz.App.1995). Gaffney has not demonstrated cause and prejudice excusing these procedural defaults, or a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Next, Gaffney contends that the district court erred by dismissing a number of his ineffective assistance of counsel claims as procedurally defaulted without addressing Gaffney's assertion of actual innocence. This contention lacks merit because the record clearly demonstrates Gaffney's guilt. See Coley v. Gonzales, 55 F.3d 1385, 1387 (9th Cir.1995). Accordingly, the district court properly rejected Gaffney's various ineffective assistance of counsel claims as procedurally defaulted. See Sturgis, 796 F.2d at 1106.
Finally, Gaffney contends that his trial attorney was ineffective for failing to challenge the admission of wiretap evidence. This contention lacks merit because Gaffney has failed to demonstrate that a suppression motion by his attorney would have had a reasonable probability of success. See Strickland v. Washington, 466 U.S. 668, 694 (1984).
AFFIRMED.