Unpublished Disposition, 865 F.2d 266 (9th Cir. 1988)
Annotate this CaseGary Ray WHITE, Petitioner-Appellant,v.Lloyd BRAMLETT; et al., Respondent-Appellees.
No. 88-1622.
United States Court of Appeals, Ninth Circuit.
Submitted* Nov. 14, 1988.Decided Dec. 28, 1988.
Before PREGERSON, CANBY and BEEZER, Circuit Judges.
MEMORANDUM**
The district court denied White's habeas corpus petition for failure to show cause for his procedural default in state court and prejudice resulting from the default. Our review of the district court's dismissal of a habeas petition is de novo. Prantil v. California, 843 F.2d 314, 316 (9th Cir. 1988). We affirm because we agree that White has failed to demonstrate cause. Because we conclude that White lacks cause for his default, we do not need to consider whether he suffered actual prejudice, Smith v. Murray, 477 U.S. 527, 533 (1986), or the merits of his constitutional claims.
FACTS
Gary Ray White, an Arizona state prisoner, appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. In his petition, White claims that he was denied the effective assistance of counsel because: (1) his trial attorney (a) failed to consult with White prior to trial, (b) did not conduct an adequate investigation, and (c) did not cross-examine or impeach the state's principal witness; (2) his trial attorney had a conflict of interest; and (3) his trial attorney failed to request a pre-trial hearing challenging the suggestiveness of the identification procedure.
White's first claim of ineffective assistance due to trial counsel's failure to investigate and cross-examine was initially raised in a supplemental brief prepared by White for the direct appeal of his jury conviction for rape and kidnapping.1 This claim was rejected and his conviction affirmed by the Arizona Court of Appeals. Neither White nor his attorney filed a motion for rehearing or a petition for review by the Arizona Supreme Court. White, acting pro se, subsequently brought two separate petitions for post-conviction relief, one in 1979, the other in 1982. Both petitions raised issues already decided on direct appeal and were denied with respect to those issues on the ground of preclusion. White did not seek appellate review of the first petition for post-conviction relief.2
White did seek both a rehearing by the trial court and a review by the Arizona Court of Appeals of the denial of the 1982 petition for post-conviction relief, but only with regard to the second and third ineffective assistance claims pertaining to conflict of interest and pre-trial identification. These issues were first raised in a supplemental petition to White's 1982 petition for post-conviction relief, prepared by appointed counsel from the Maricopa County Public Defender. The trial court denied the supplemental petition and a petition for rehearing. Upon the motion of appointed counsel, the Arizona Court of Appeals granted review and rejected the second and third claims on the merits. A different attorney from the Maricopa County Public Defender filed a petition for review to the Arizona Supreme Court on behalf of White. This petition was denied for failure to comply with Rule 31.19(c) (2), (3) and (4) of the Arizona Rules of Criminal Procedure. White's attorney was reprimanded for filing a petition for review contrary to the principles stated in State v. Shattuck, 140 Ariz. 582, 684 P.2d 154 (1984) (counsel should not seek review by Arizona Supreme Court when the only issues that can be raised are without merit or frivolous).
DISCUSSION
In this appeal, White apparently concedes that he has procedurally defaulted on all three claims and therefore must show "cause" for the default and "prejudice" as a result of the default in order to qualify for federal habeas review. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Accord Bruni v. Lewis, 847 F.2d 561, 562 (9th Cir. 1988), petition for cert. filed, August 31, 1988. White contends that the ineffective assistance of the court-appointed public defender who failed to file a procedurally-correct petition for review to the Arizona Supreme Court constitutes "cause".3 A determination of ineffective assistance of counsel under prevailing constitutional standards may be cause for procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986). However, because there is no constitutional right to counsel to pursue a discretionary petition for review, the alleged incompetence of White's public defender does not constitute ineffective assistance of counsel. Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (per curiam).4
White seeks to distinguish Torna, involving an error on the part of retained counsel, from this case involving court-appointed counsel. Opening Brief at 2. The distinction is irrelevant. In a discretionary appeal, White has no federal constitutional right to effective assistance of counsel by either an appointed or a retained attorney. Cf. Pennsylvania v. Finley, --- U.S. ---, 107 S. Ct. 1990, 1994 (1987) (rejecting argument that Anders procedures should be applied to counsel for post-conviction relief appointed as of right under state law just because Anders is applied to attorneys when the right to counsel is mandated by the federal constitution).
Even if White could have presented a successful ineffective assistance claim, the exhaustion doctrine "generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Carrier, 477 U.S. at 489. See Rose v. Lundy, 455 U.S. 509, 518 (1982). White has not done so.5
The district court recognized that Murray v. Carrier, supra, and Wainwright v. Torna, supra, appear inconsistent at first glance. Read together, the cases suggest that a criminal defendant charged with procedural default will never be able to show cause based on ineffective assistance of counsel if the ineffective assistance occurred in any proceeding after the initial trial and appeal as of right. However, a petitioner in such a situation remains protected: "the principles of comity and finality that inform the concepts of cause and prejudice 'must yield to the imperative of correcting a fundamentally unjust incarceration.' " Carrier, 477 U.S. at 495 (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)). A petitioner may obtain habeas review without demonstrating cause in the extraordinary case "where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Carrier, 477 U.S. at 496. White does not meet this narrow exception.6 We are therefore unable to overlook the procedural default in this case.
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 3(a)
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
White's trial counsel prepared a brief on appeal pursuant to Anders v. California, 386 U.S. 738 (1967), which did not raise effective assistance issues
White's first claim of ineffective assistance of counsel was never presented to the highest Arizona state court. The question of exhaustion of state remedies is therefore presented. See Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 906 (9th Cir. 1086); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988)
28 U.S.C.A. Sec. 2254(b) (1977) requires habeas applicants to exhaust those remedies "available in the courts of the State." Failure to exhaust state remedies with respect to any issue in a habeas petition requires dismissal of the entire petition. Rose v. Lundy, 455 U.S. 509 (1982); Guizar v. Estelle, No. 86-6378, slip op. at 3765 (filed March 31, 1988). This requirement, however refers only to state remedies still available at the time of the federal petition. See Humphrey v. Cady, 405 U.S. 504, 516 (1972); Fay v. Noia, 372 U.S. 391, 435 (1963).
White long ago completed his direct appeal and has already brought two petitions for post-conviction relief under Ariz.R.Crim.P. 32. Rule 32 provides only limited collateral review of convictions. Any remedy is precluded if it was " [k]nowingly, voluntarily and intelligently not raised at trial, on appeal, or in any previous collateral proceeding." Ariz.R.Crim.P. 32.2(a) (3). A court can infer that a petitioner knowingly, voluntarily and intelligently relinquished the right to raise an issue if the petitioner "fail [ed] to raise any ground then available to him in a previous Rule 32 proceeding in which he was represented by counsel." Ariz.Crim.P. 32.2(c). White has not raised his first ineffective assistance of counsel claim in any of his state proceedings. He is therefore presently unable to raise his first claim in the Arizona state courts because of the procedural bar established under Rule 32.2. Because state collateral review is unavailable for White's first claim, White has exhausted state remedies with respect to this claim. Engle v. Isaac, 456 U.S. 107, 125-26 n. 28 (1982).
Because we decide White has not failed to exhaust his first claim, we are not required to dismiss the entire petition. White's inability to raise these issues in state court is based on application of a procedural rule. Therefore, we will apply the cause and prejudice standard to determine whether White's bypass of state remedies for this first claim may be excused.
White also suggests that the procedural default resulting from his failure to present his first claim to the Arizona Supreme Court was the result of his status as an "incarcerated layman ... rely [ing] on the assistance of various 'jailhouse lawyers.' " Reply Brief at 2. This disadvantage is not sufficient to demonstrate cause. Hughes, 800 F.2d at 909
Torna also held that a petitioner was not denied due process of law when his retained counsel deprived him of the right to petition the Supreme Court. The Court did not reach the question of whether due process concerns were implicated in that instance, because it found that any deprivation was caused by private counsel, not by the state. Id. at 588 n. 4. White's case involves representation by the Maricopa County Public Defender. However, because neither party presented a due process argument in their briefs, we decline to address the issue
White argues that he would be unable to present an ineffective assistance claim in Arizona state court because the Arizona Rules of Criminal Procedure have no provision for review of such a claim. Reply Brief at 2. However, because of the holding of Wainwright v. Torna, supra, we are not presented with the situation in which a petitioner with a colorable ineffective assistance claim is sent back to the state courts for failure to exhaust when it is clear that no post-conviction review will be available there
The memorandum decision of the Arizona Court of Appeals denying White's second post-conviction petition, filed January 22, 1985, notes that the evidence resulting in White's conviction included the victim's testimony, articles of White's clothing and the presence of White's fingerprints on the victim's car. And the Arizona Supreme Court, in an order filed March 28, 1985, reprimanded White's counsel for filing a petition for review raising frivolous or meritless issues
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