Marcy v. Angol

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 6 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KRISTOPHER M. MARCY, No. 24-1769 D.C. No. Petitioner - Appellant, 3:23-cv-00290-SLG v. MEMORANDUM* SARAH ANGOL, Respondent - Appellee.

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, Chief District Judge, Presiding Submitted April 30, 2026** Before: McKEOWN, N.R. SMITH, and H.A. THOMAS, Circuit Judges.

Petitioner Kristopher M. Marcy appeals the district court’s sua sponte dismissal of his pro se habeas petition as procedurally defaulted. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the district court’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). dismissal of a habeas petition. Neiss v. Bludworth, 114 F.4th 1038, 1044 (9th Cir. 2024).

The district court dismissed Marcy’s petition without first providing notice and an opportunity to respond. That procedure contravenes our precedent. Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998) (“A habeas court must give a petitioner notice of the procedural default and an opportunity to respond to the argument for dismissal.”). Respondent concedes that the district court’s summary dismissal without notice was inconsistent with Boyd and warrants remand.

In light of that concession and our precedent, we vacate the judgment and remand for the district court to provide Marcy notice and an opportunity to respond. We do not reach the merits of the underlying procedural default issue.

VACATED and REMANDED.1

The pending motion to remand (Dkt. No. 41) is DENIED AS MOOT.

2 24-1769