Samuel J. Tucker, Jr., Petitioner-appellant, v. Larry Kincheloe, Superintendent for the Spring Creekcorrectional Center; Margaret M. Pugh,commissioner of Corrections,respondents-appellees, 127 F.3d 1106 (9th Cir. 1997)

MEMORANDUM^* 

Samuel Tucker, Jr. appeals the dismissal of his habeas petitioner, arguing that the district court was wrong in concluding that his claims are procedurally defaulted because his attorney did not file for discretionary review of those claims in the Alaska Supreme Court. Ineffectiveness of counsel in collateral proceedings cannot, however, excuse procedural default; there is no constitutional right to effective assistance of counsel in habeas proceedings. See Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir. 1996), cert. denied, 116 S. Ct. 980 (1996).

Tucker frames his argument, however, as one of due process, arguing that (1) the state has a constitutional mandate to provide meaningful access to court; (2) the state: chose to satisfy this mandate by supplying his counsel; (3) counsel violated his due process rights by failing to file a timely petition for review; and (4) because his state-funded attorney caused the procedural default, the state cannot bar him from litigating his claims in federal court. We do not agree with Tucker's conclusion that his claims are not barred.

In Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993), we specifically rejected petitioner's argument that because state law required competent counsel for state post-conviction proceedings and the state provided a public defender, that "the state must bear the cost of any resulting default." Id. at 430. Similarly, in Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996), we reiterated that one "may not avoid our holding that a petitioner is not entitled to effective assistance of counsel during habeas proceedings by alleging a due process, rather than a Sixth Amendment, violation." Finally, we recently rejected the argument "that a finding of cause can attach to ineffective assistance of [post conviction relief] counsel if that counsel is appointed by the State." Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997). Tucker's argument is foreclosed by these cases. We accordingly affirm the district court's dismissal of his habeas petition.

AFFIRMED.