Unpublished Disposition, 925 F.2d 1470 (9th Cir. 1991)

Lee Roy Perkins, an Arizona state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas petition. Perkins contends that he was denied his right under Arizona law to a change of judge at trial.¹  We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and affirm.

The district court correctly determined that the Arizona Supreme Court's denial without comment of Perkins's petition for post-conviction relief does not establish that Perkins procedurally defaulted on his claim. See Harris v. Reed, 109 S. Ct. 1038, 1044 (1989) (requiring a "plain statement" that state court denied relief based on an adequate and independent state ground). Nevertheless, the district court properly dismissed the petition because Perkins's contention that the state court misapplied Arizona law in denying his motion for a change of judge does not present a federal constitutional question cognizable in a habeas petition. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (habeas relief is not available for alleged error in application of state law), cert. denied, 478 U.S. 1021 (1986). Moreover, Perkins's constitutional rights to due process and equal protection of the law were not violated because there is no evidence of judicial bias. See Jeffers v. Ricketts, 832 F.2d 476, 482 (9th Cir. 1987) (habeas relief is available only where petitioner demonstrates unfair treatment due to judicial bias).

AFFIRMED.