Unpublished Disposition, 860 F.2d 1088 (9th Cir. 1987)

Manuel Cota GARCIA, Petitioner-Appellee,v.Robert GOLDSMITH; Robert Corbin. Respondents-Appellants.Manuel Cota GARCIA, Petitioner-Appellant,v.Robert GOLDSMITH; Robert Corbin. Respondents-Appellees.

Nos. 88-1530, 88-1582.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 10, 1988.^* Decided Oct. 18, 1988.

Before EUGENE A. WRIGHT and POOLE, Circuit Judges, and RUDI M. BREWSTER,^**  District Judge.

MEMORANDUM^*** 

I. OVERVIEW

This is a cross-appeal from a judgment granting in part and denying in part Manuel Cota Garcia's petition for a writ of habeas corpus. Garcia petitioned the district court pursuant to 28 U.S.C. § 2254, challenging his 1982 state conviction and sentencing for violating Ariz.Rev.Stat. Sec. 13-206, which prohibits dangerous and deadly assault by a prisoner. The district court granted Garcia's petition, in part, finding the sentence imposed was disproportionate to the crime committed and in violation of the Eighth Amendment of the Constitution. The district court also held Garcia was not denied the effective assistance of counsel in violation of the Sixth Amendment. The relevant procedural history of petitioner's case is as follows:

In June, 1982, Garcia was an inmate in the custody of the Arizona Department of Corrections at the Fort Grant Training Center, serving two concurrent five year sentences for theft. He had been in state custody since June, 1980.

On June 26, 1982, Garcia attempted to escape. Prison guards, noticing Garcia's absence, tracked him to a spot outside the perimeter of the prison grounds. Garcia was wielding a 20-inch steel bar which was initially thought to be a machete. Five guards surrounded Garcia and requested he surrender to their custody. Garcia threatened the guards, but eventually they immobilized him with gas. None of the officers or Garcia suffered any injury.

Garcia was charged with four counts of deadly assault by a prisoner under Ariz.Rev.Stat.Ann. Sec. 13-206. A jury convicted him on three of the four counts of assault. The trial court gave him the mandatory sentence of life imprisonment without possibility of early release or parole for twenty-five years.

Garcia filed a delayed appeal to the Arizona Supreme Court claiming cruel and unusual punishment and deprivation of the right to a fair trial caused by ineffective assistance of counsel and paranoid delusions of persecution. The Arizona Supreme Court affirmed Garcia's conviction and sentences. State v. Garcia, 141 Ariz. 97, 685 P.2d 734 (1984).

Garcia, acting pro se, then filed three petitions for post-conviction relief under Rule 32, Arizona Rules of Criminal Procedure. The Superior Court denied relief in all three instances. Garcia did not appeal the denial of his Rule 32 petitions to the state courts of appellate review. Instead, he filed a habeas corpus petition in the district court when his time for appeal had elapsed.

On May 20, 1985, Garcia filed a petition for writ of habeas corpus in the United States District Court for the District of Arizona, alleging deprivation of his Sixth and Eighth Amendment rights. Counsel was appointed to represent Garcia. Garcia's new counsel argued that Ariz.Rev.Stat. Sec. 13-1206 was facially unconstitutional and unconstitutional as applied in violation of the Eighth Amendment. In addition, he argued that the ineffective assistance of counsel claim arose from the state's failure to disclose evidence of Garcia's prior psychological problems which it had an obligation to disclose to the defense under Brady v. Maryland, 373 U.S. 83 (1963).

The state brought a Motion to Dismiss, arguing that the facial challenge to the constitutionality of the Arizona statute and the particular ineffective assistance of counsel argument had not been raised on direct appeal. On April 8, 1987, the district court denied defendant's Motion to Dismiss, finding that the petitioner, "by citing the sixth and eighth amendments in his petition, had done as much as he could be expected to do in raising these issues in the state court."

On December 1, 1987, the district court granted in part and denied in part Garcia's petition for habeas corpus without an evidentiary hearing. The district court granted the petition on the grounds that the sentence imposed on Garcia was disproportionate to the crime committed, but denied the facial challenge to the statute. In addition, the district court denied the petition on the grounds that Garcia was denied effective assistance of counsel based on a violation of Brady v. Maryland.

II. DISCUSSION

A state prisoner must exhaust all available state court remedies before a federal court may consider granting habeas corpus relief. Duckworth v. Serrano, 454 U.S. 1, 102 S. Ct. 18 (1981). The Supreme Court has interpreted the exhaustion doctrine to require that an applicant must exhaust all claims advanced in his petition in order to have any of his allegations considered by a federal court. Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198 (1982). The exhaustion requirement is satisfied if a petitioner provides the highest state court with an opportunity to rule on the merits of his federal claims or shows that at the time petitioner filed his habeas petition in federal court, he had no state remedies available and had not deliberately bypassed them. McQuown v. McCartney, 795 F.2d 807 (9th Cir. 1986).

A petitioner is permitted to reformulate his allegations somewhat before the federal court as long as he has properly presented them before the highest state court. Picard v. Connor, 404 U.S. 270, 278, 92 S. Ct. 509, 513 (1971). In order to be properly presented, the petitioner must have described the operative facts and legal theories on which his claims are based. Id. at 277-78, 92 S. Ct. at 513.

Thus, we must determine whether petitioner has satisfied the exhaustion test with respect to each of the separate claims presented in his application. We find that he has met the test with respect to his Eighth Amendment claim based upon a disproportionate sentence under the circumstances of his crime; this claim was presented before the Arizona Supreme Court and denied by the court.

However, as to the remaining two claims petitioner failed to utilize the avenues of appeal available to him. The district court order indicates that Garcia's petition raises claims "for the first time ... presented in a form for meaningful response from the state and for judicial consideration." Order at p. 4. Although petitioner raised the Eighth Amendment and the particular challenge to the Arizona statute as applied to the circumstances of his case, he failed to raise the facial challenge to the statute in the Arizona courts. In addition, the Arizona courts have not in fact considered Garcia's Sixth Amendment cum Brady challenge. Since Garcia's petition contains unexhausted claims, the rule of Rose v. Lundy controls, and the district court must dismiss the habeas petition containing both exhausted and unexhausted claims.

The district court's Order granting in part and denying in part Garcia's petition does not suggest that Garcia is now procedurally barred from seeking state post-conviction relief on these Eighth and Sixth Amendment claims. If petitioner is in fact procedurally barred, the district court failed to analyze Garcia's petition to determine if the petitioner had shown cause for noncompliance and actual prejudice. See Wainwright v. Sykes, 433 U.S. 72 (1977). Thus, the district court erred in ruling on any of petitioner's claims because petitioner had not fully exhausted all of the federal claims in the state courts or demonstrated that no state remedies are available.

Therefore, we reverse the district court order granting in part and denying in part petitioner's application for a writ of habeas corpus. In addition, we remand to the district court for a determination whether petitioner's unexhausted claims were procedurally barred. If the court finds the claims procedually barred, it should engage in a Wainwright cause and prejudice analysis. If not procedurally barred, the district court should enter an order dismissing the petition pursuant to Rose v. Lundy.

The order is REVERSED and REMANDED.