. [3] The procedural requirements of the Federal Rules of Appellate Procedure similarly do not preclude magistrate judges from issuing COAs. Rule 22 provides in part that "[i]n a habeas corpus proceeding in which the detention complained of arises from process issued by a state court... the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability." Fed. R. App. P. 22(b)(1). Although the list of judges does not include magistrate judges, there is no indication that it was intended to limit the scope of � 2253(c)(1). Indeed, the advisory committee note to the 1998 amendments that added the phrase "circuit justice or a circuit or district judge" to Rule 22 makes clear that the phrase was inserted in the Rule to show inclusively that district judges, and not only circuit judges, are authorized to issue COAs. See Fed. R. App. P. 22 advisory committee note. The amendments did not address the question of whether magistrate judges were barred from doing so. Accordingly, the amendments do not indicate an intent to bar magistrates from issuing COAs and the principle of inclusio unius est exclusius alterius does not apply with any force to this aspect of Rule 22. [4] Moreover, this court has already adopted an interpretation of Rule 22 that permits magistrate judges to issue COAs. 198 HANSON v. MAHONEY The Ninth Circuit rules state that "a certificate of appealability must first be considered by the district court," Ninth Circuit Rule 22-1(a) (emphasis added), without specifying whether the judge at the district level must be an Article III judge or a magistrate judge. The choice of the term "district court" rather than a specific reference to district or magistrate judges raises the inference that a magistrate judge is not precluded from issuing a COA under Fed. R. App. P. 22. Although we are not bound by our circuit rule if it conflicts with binding authority to the contrary, this court's interpretation of Fed. R. App. P. 22 as announced in the circuit rules is significantly persuasive. Finally, we note that regardless of whether a petitioner's request for a COA is adjudicated below by an Article III judge, after the request has been considered by the district court, the petitioner is free to request a COA from the judges of this court. See Ninth Circuit Rule 22. We may grant a request for a COA on any issue if the petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. � 2253(c)(2). That is, if a petitioner shows "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.' " Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)); see also Miller-El v. Cockrell, 537 U.S. 322 (2003). In practical terms, therefore, a petitioner does not lose the opportunity for his request for a COA to be considered anew by an independent Article III judge merely because a magistrate judge considered the request in the first instance. [5] Accordingly we hold that magistrate judges may issue COAs if they have been authorized by consent of the parties to adjudicate the entire case pursuant to 28 U.S.C. � 636(c)(1). HANSON v. MAHONEY 199 II. Merits [6] We turn to the merits of Hanson's appeal. The COA issued below permits us to consider (1) whether Hanson was deprived of a constitutional right because the state trial court did not require the jury to agree unanimously as to which of Hanson's alleged sex acts constituted the conduct for which he was convicted on each count and (2) whether Hanson's claim for relief on this basis was procedurally defaulted.4 We agree with the district court that Hanson's claim for relief on his unanimity claim was defaulted and that the default is not excused. We therefore affirm the dismissal below. Hanson advances two arguments as to why his unanimity claim may be heard on the merits. First, he contends that the Montana statute asserted to bar his claim on procedural grounds is not firmly established and has not been regularly followed, and thus does not preclude our consideration of his claim. Second, he argues that any default is excused because the attorney who assisted him with the preparation of his state petition for collateral relief operated under a conflict of interest. Neither of these arguments has merit. A. Firmly Established and Regularly Followed State Bar As we have explained: The procedural default doctrine bars federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement. Not all state procedural bars are adequate to foreclose federal review. For the procedural default doctrine to apply, a state rule must be clear, consistently Because Hanson has not challenged the scope of the COA issued, we do not consider whether a COA might issue on his other claims for relief. 4 200 HANSON v. MAHONEY applied, and well-established at the time of the petitioner's purported default. Calderon v. United States District Court, 96 F.3d 1126, 1129 (9th Cir. 1996), cert. denied sub nom. Calderon v. Bean, 520 U.S. 1204 (1997) (citations and internal quotation marks omitted). Hanson contends that when his state direct appeal was adjudicated, the Montana courts did not consistently apply � 46-21-105 to bar claims not raised on direct appeal. Because we must look to the time period in which the purported default occurred to judge the adequacy of the state bar, see Calderon v. United States District Court, 103 F.3d 72, 75 (9th Cir. 1996) (per curiam), cert. denied 521 U.S. 1129 (1997), we consider whether � 46-21-105 was clear, consistently applied, and well established from 1995 to 1997. We conclude that it was. Hanson cites two Montana cases from the relevant time period to prove otherwise: State v. Christensen, 907 P.2d 970 (Mont. 1995) and Kills On Top v. State, 901 P.2d 1368 (Mont. 1995). The state court held in Christensen that � 46-21-105 may be overlooked when a petitioner demonstrates that a fundamental miscarriage of justice has occurred. Christensen, 907 P.2d at 972. This ruling does not help Hanson because, although the Montana court recognized an exception to � 4621-105, it refused to apply it. Christensen does not indicate that � 46-21-105 in fact was inconsistently applied at the time. Nor does Kills On Top considered in conjunction with Christensen aid Hanson. In Kills On Top, the Montana Supreme Court specifically overruled an older precedent, State v. Henricks, 672 P.2d 20, 23 (Mont. 1983), that had permitted it to review claims not raised on direct appeal despite � 46-21-105. The court was at pains to indicate that it had been consistent in applying � 46-21-105, and it stated: Since Henricks was decided, we have not cited it for the proposition that this Court can review issues in HANSON v. MAHONEY 201 postconviction proceedings which could have been raised on direct appeal. We now specifically overrule Henricks to the extent that it stands for the proposition that this Court can review issues in postconviction proceedings which could have been raised on direct appeal. Kills On Top, 901 P.2d at 1386-87. Thus, the Montana Supreme Court indicated clearly that despite Henricks, its jurisprudence applying � 46-21-105 was clear and consistent. Hanson has raised nothing before this court to indicate that the Montana Supreme Court's assessment of its jurisprudence is inaccurate. The other cases that Hanson asks us to consider were decided well after 1997 and are outside of the relevant time period. See State v. Whitehorn, 50 P.3d 121 (Mont. 2002); State v. Worrall, 976 P.2d 968 (Mont. 1999). Accordingly, we hold that � 46-21-105 is adequate to bar Hanson's claim. B. Excuse for Default Because we hold that Hanson's claim for relief is procedurally defaulted, we must consider whether his default is excused. "Procedural default is excused if `the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.' " Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Hanson does not allege that failure to consider his claims will result in a fundamental miscarriage of justice. He argues instead that he has demonstrated cause and prejudice because Ed Sheehy, who ghostwrote his state petition for collateral review, operated under a fatal conflict of interest because he was employed by the Montana Department of Corrections at 202 HANSON v. MAHONEY the time he wrote Hanson's petition and briefs. Even assuming for the sake of argument that Sheehy was under a conflict of interest, nothing he did caused Hanson's default. Sheehy's involvement with Hanson's case occurred entirely after the default occurred. At most Sheehy's