Unpublished Disposition, 841 F.2d 1129 (9th Cir. 1982)

MEMORANDUM

Noriega appeals from the denial of her petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. § 2253. We vacate and remand for the entry of an order dismissing the petition.

Noriega was convicted of first degree burglary and aggravated assault. Because she committed those crimes while on probation, and because those crimes were found to be dangerous offenses, the state trial court sentenced Noriega pursuant to the mandatory sentencing provisions of Ariz.Rev.Stat.Ann. Sec. 13-604.01(A). She received concurrent terms of life imprisonment without possibility of parole for 25 years.

Noriega sought state court appellate review. She alleged:

1. She did not validly waive her Miranda rights;

2. The trial court erred in refusing to instruct the jury on lesser included offenses;

3. The trial court erred in refusing to instruct the jury on self-defense;

4. The post-conviction amendment of her indictment (to charge more severe sentence enhancement) was untimely;

5. Presumption of prosecutorial vindictiveness barred post-conviction amendment of her indictment;

6. Imposition of a life sentence constituted cruel and unusual punishment or a denial of equal protection.

State v. Noriega, 690 P.2d 775, 779-80 (Ariz.1984). The Arizona Supreme Court rejected her contentions and affirmed her conviction and sentence. Id. at 775.

Noriega petitioned the federal district court for writ of habeas corpus. In her petition she asserted the following state court errors:

A. The trial court denied petitioner due process of law by permitting the state to amend the indictment.

B. The petitioner was denied a fair trial and prejudiced by prosecutorial misconduct in violation of the Sixth Amendment.

C. The trial court erred when they [sic] denied petitioner's motion to dismiss or recuse [the] prosecutor without finding if the alleged threat was actually made.

D. Petitioner was denied effective assistance of counsel in violation of the Sixth Amendment.

E. The punishment received by petitioner pursuant to Ariz.Rev.Stat.Ann. Sec. 13-604.01(A) is both cruel and unusual in violation of the Eighth Amendment and denied petitioner equal protection of the law as protected by the Fourteenth Amendment.

The district court concluded that Noriega's allegation of ineffective assistance of counsel presented a waived claim (effectiveness of state trial counsel) and a new, unwaived claim (effectiveness of state appellate counsel). The court found that Noriega's claim of trial court procedural error (failure to hold an evidentiary hearing to determine prosecutorial bias) was unexhausted. Applying the rule of Wainwright v. Sykes, 433 U.S. 72 (1977), the court ruled that Noriega's claims of ineffective assistance of trial counsel, and procedural error at trial, were not properly before it. It reached, and denied, all of Noriega's remaining claims.

In the appeal now before us, Noriega seeks to present the following issues:

1. Whether appellant was placed in double jeopardy when she was subjected to two separate trial-like proceedings and two separate punishments for committing the offenses charged in the indictment of October 8, 1982.

2. Whether the Arizona enhancement statute (Sec. 13-604.02) is unconstitutional because it impermissibly punishes the "status" of being convicted rather than any act of the defendant.

3. Whether the Arizona enhancement statute (Sec. 13-604.02) is unconstitutional because it neither requires the court to examine the reliability or constitutionality of the prior offense nor does it allow the prisoner an opportunity to do so.

4. Whether the enhancement provisions of Sec. 13-604.02 are cruel and unusual and deny equal protection because they are a disproportionate penalty for violation of the terms of a release from confinement.

5. Whether appellant was denied due process when the state was permitted to amend the indictment contemporaneously with the imposition of the enhanced sentence under provisions which had never been charged even if such amendment was granted by Judge Livermore.

6. Whether the record establishes both a presumption of vindictiveness in increasing the charge subsequent to trial as well as a possibility of actual vindictiveness and therefore the district court erred in dismissing without an evidentiary hearing.

7. Whether appellant has complied with the rules of habeas corpus procedure by exhausting all state remedies and all issues have been presented to the highest state court.

Appellees moved to strike issues 1, 2, and 3 and we have earlier granted that motion. These issues were not presented to the district court and are raised for the first time in this appeal. They are not properly before us. Willard v. California, 812 F.2d 461, 465 (9th Cir. 1987). From this ruling, Noriega suffers no prejudice of a possible abuse of writ claim. She has never pursued these claims in the state court or the federal district court.

The district judge concluded that the ineffective assistance of state appellate counsel and denial of her motion to recuse the state prosecutor claims were not exhausted nor waived. He granted a motion to dismiss the latter for failure to exhaust, but denied the former, holding Noriega was not actually prejudiced.

The general rule in section 2254 actions is clear: if exhausted and unexhausted claims are presented in a single petition, the petition should be dismissed. Rose v. Lundy, 455 U.S. 509 (1982) (Lundy) . That rule is based primarily on considerations on comity, id. at 518, and judicial economy. See Batchelor v. Cupp, 693 F.2d 859, 861-62 (9th Cir. 1982) (Batchelor), cert. denied, 463 U.S. 1212 (1983).

We recognize that the general rule of Lundy, in light of its policy underpinnings, is subject to only a limited exception. If a claim is unexhausted, but the petitioner can show that no state remedy remains and that the failure to exhaust was not deliberate, then we do not mandate dismissal of the claim. We allow such petitioners the opportunity to prove "cause" (excuse for their procedural default) and consequent "prejudice" of a substantial right (as dictated by Wainwright v. Sykes, 433 U.S. 72 (1977)). See Batchelor, 693 F.2d at 863-64.

Clearly there were two nonexhausted claims before the district court which did not fall within the limited Lundy exception. The district court erred in not dismissing the entire petition.

Noriega contends the district judge was wrong in holding that the claims were unexhausted. She contends that because the Arizona Supreme Court recognizes an obligation to "search the record for fundamental error," all fundamental error claims are exhausted by any state supreme court review. She cites several cases, none on point, for that proposition. The district judge rejected Noriega's contention and held that she was required to raise the claim or risk procedural default. We agree with the district judge.

The cases relied upon by Noriega, e.g., Walker v. Endell, 828 F.2d 1378 (9th Cir. 1987) (Walker), and Mann v. Dugger, 817 F.2d 1471 (11th Cir.) (Mann), vacated, reh'g en banc ordered, 828 F.2d 1498 (11th Cir. 1987), do not help. In all such cases the state courts had actually reached and analyzed the merits of the procedurally suspect claim. See, e.g., Walker, 828 F.2d at 1382; Mann, 817 F.2d at 1477 (distinguishing Hargrave v. Wainwright, 804 F.2d 1182, 1187-88 (11th Cir. 1986), vacated, 809 F.2d 1486, on reh'g en banc, 832 F.2d 1258 (11th Cir. 1987). The correct rule is as it appears in Walker, 828 F.2d at 1382: this court may "consider a claim on federal habeas that has been reviewed by a state appellate court for plain error." (Emphasis added.)

To adopt Noriega's position would do violence both to comity and to judicial economy. We cannot, as a judicial rule, assume that judges will always notice fundamental errors not identified by the parties. The Arizona Supreme Court may waive procedural default for fundamental errors brought to its attention. It does not follow that that court's review of a record constitutes plenary review of all possible constitutional claims (even claims not announced, for whatever reason, or not yet discovered, by an appellant). That is the problem with Noriega's argument. State courts should be given "the first opportunity to review all claims of constitutional error." Lundy, 455 U.S. at 518-19 (emphasis added). We can best promote comity by applying the general principles of Lundy and Batchelor even in states like Arizona, where courts search records for fundamental error.

We need not reach the issue of whether the first three claims on appeal also present a Lundy issue. They were dismissed for a different reason: they were not contained in Noriega's petition filed in the district court.

We vacate the judgment of the district court and remand so the district court can dismiss the petition without prejudice, see Powell v. Spalding, 679 F.2d 163, 165 n. 2 (9th Cir. 1982), for failure to exhaust state remedies.

VACATED AND REMANDED.