John Kim, Petitioner-appellant, v. C.j. Villalobos, Respondent-appellee, 42 F.3d 1400 (9th Cir. 1994)

Before: CHOY, SKOPIL, and FERGUSON, Circuit Judges.

MEMORANDUM^** 

John Kim, a former California state prisoner, appeals the district court's denial of his habeas corpus petition. He contends that the district court's conclusion that he procedurally defaulted his federal claims is precluded by our prior decision. We disagree. Our prior decision, Kim v. Villalobos, 799 F.2d 1317 (9th Cir. 1986), established only that Kim satisfied the exhaustion requirements of 28 U.S.C. § 2254. We did not discuss or reach the issue of procedural default.

Procedural default occurs when a petitioner has not presented a claim in state court and is now barred from doing so by state procedural rules. See Castille v. Peoples, 489 U.S. 346, 351-52 (1989). Procedurally defaulted claims cannot be reviewed in federal court unless the petitioner demonstrates cause for the default and prejudice. Teague v. Lane, 489 U.S. 288, 298 (1989). Kim argues that he has established cause and prejudice excusing his procedural default. We agree with the district court that Kim demonstrated no "cause" for his procedural default, other than his knowing and deliberate refusal to file a timely notice of appeal.

Kim alternatively argues that he is entitled to federal review under the "miscarriage of justice" exception. We disagree. The exception is a narrow one, focusing on actual as compared to legal innocence. Sawyer v. Whitley, 112 S. Ct. 2514, 2518-19 (1992). Kim has not demonstrated a "colorable showing of factual innocence" to overcome the procedural default by means of the miscarriage of justice exception. See Thomas v. Goldsmith, 979 F.2d 746, 749 (9th Cir. 1992).