Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1988)

MEMORANDUM^** 

The district court summarily dismissed Rodriguez' pro se petition for writ of habeas corpus under 28 U.S.C. § 2254, stating that " [p]etitioner has procedurally defaulted on all claims raised in the instant petition." We affirm in part, reverse in part and remand for further proceedings.

BACKGROUND

Richard Rodriguez, an Arizona state prisoner, was convicted on June 14, 1977, after a jury trial in Pima County Superior Court.¹  A timely appeal was filed and stayed pending resolution of Rodriguez' first Petition for Post-Conviction Relief (the "First Petition") which was denied by the trial court on June 21, 1978. A Petition for Review of that denial was filed and consolidated with Rodriguez' direct appeal. The Arizona Supreme Court affirmed the denial of the First Petition and affirmed Rodriguez' conviction on May 12, 1980. State v. Rodriguez, 126 Ariz. 28, 612 P.2d 484 (1980). A Petition for Rehearing was denied. Rodriguez was represented by counsel at all stages of these proceedings.

On September 30, 1982, Rodriguez filed a second Petition for Post-Conviction Relief in the trial court.²  A second Amended Petition was filed on March 14, 1986 and a Supplement to the Amended Petition on April 23 of the same year. (These three documents will be referred to collectively as the "Second Petition"). The Second Petition was denied without an evidentiary hearing in a May 8, 1986, Minute Order. The Minute Order relied on a variety of procedural grounds for dismissal, none of which reflect a consideration of the merits of Rodriguez' claims. Rodriguez sought reconsideration by the trial court of this denial in a Motion for Rehearing, a Petition for Review of the Post-Conviction Relief Order and a Petition for Special Action in June of 1986--all of which were denied. A Petition for Review of the denial of the Second Petition was also denied without comment or citation by the Arizona Supreme Court on November 12, 1986. Rodriguez was represented by counsel at most stages of the proceedings involving the Second Petition.

The instant petition for writ of habeas corpus was filed on March 4, 1987 and was supplemented by a memorandum filed on November 17, 1987. Rodriguez asserts the following claims:

(1) denial of Sixth Amendment rights when trial counsel, against Rodriguez' expressed wishes, declined to call witnesses or present other evidence to establish a defense when the State rested its case at trial;

(2) ineffective assistance of trial counsel due to conflict of interest because the Pima County Public Defender's office simultaneously represented Rodriguez and Mary Sue Draper, a material adverse witness;

(3) prejudicial error and bad faith of the State in failing to disclose Draper's prior convictions and outstanding bench warrants at trial and later recommending that Draper's outstanding warrants and indictments be dismissed;

(4) error on the part of the trial court in permitting the State to present Draper's taped statement to the jury when Draper was allegedly able to testify and was within the court's jurisdiction;

(5) prejudicial error of the State in failing to disclose Draper's unwillingness to testify and the related insufficiency of its own efforts to locate Draper;

(6) ineffective assistance of trial counsel in failing adequately to interview witnesses in preparation for trial;

(7) fundamental error on the part of trial counsel and the trial court for failure to request and give a jury instruction regarding Draper's prior felony conviction; and³ 

(8) ineffective assistance of trial counsel in failing to conduct a ballistics investigation of a pistol found in the hotel where the shooting occurred.

DISCUSSION

A federal claim which is not resolved on the merits in a state proceeding due to a failure to comply with a state's procedural requirements will only be reviewed by a federal court in a habeas proceeding if the petitioner demonstrates "cause" for the bypass of state procedures and "prejudice" as a result of the default. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); accord Bruni v. Lewis, 847 F.2d 561, 562 (9th Cir.), cert. denied, 109 S. Ct. 403 (1988). However, before this court can apply a cause and prejudice analysis, a threshold determination must be made that the merits of each claim raised for federal habeas review were not resolved in state court.

Rodriguez' claim of a Sixth Amendment violation due to trial counsel's failure to call witnesses and otherwise present a defense, number 1 above, was raised both on direct appeal and in the First Petition. The merits were clearly reached by the Arizona Supreme Court in State v. Rodriguez, 126 Ariz. at 28, 612 P.2d 484 (1980).⁴  In addition, the merits of this claim were addressed in the trial court's Minute Order denying the Second Petition. Rodriguez has not procedurally defaulted on this claim and the claim was therefore properly before the district court.

The majority of Rodriguez' claims, numbers 2-7 above, were raised only in the Second Petition. The Minute Order denying the Second Petition concludes that the claims were neither colorable nor prompt and that they could have been previously raised either on direct appeal or in the First Petition. All of these are procedural grounds. The Arizona Supreme Court denied the Petition for Review of this decision without case citation or comment.

The rule in this circuit regarding the presumption when a petition is denied without comment was clearly stated in Thompson v. Procunier, 539 F.2d 26, 28 (9th Cir. 1976) (per curiam):

Where a petition for a writ of habeas corpus presenting a federal constitutional question is denied by a state court with no reason given, we will assume that the state court has had an opportunity to pass upon the merits of the issue and has resolved it against the petitioner.

However, the application of the Thompson presumption has been significantly narrowed. In McQuown v. McCartney, 795 F.2d 807 (9th Cir. 1986) (per curiam), we ruled that the California Supreme Court's denial of a petition for a hearing without citation or comment, following the California Court of Appeal's dismissal of a habeas petition on procedural grounds, was a procedural denial and not a denial on the merits. Id. at 810. Our recent decision in Tacho v. Martinez, No. 85-2514, slip op. at 15027 (9th Cir. Dec. 8, 1988), extended McQuown to summary denials of Petitions for Review by the Arizona Supreme Court. Id. at 15033. Tacho held that "when an issue is not presented in a procedurally correct manner and there is no mention of the issue in the Arizona Supreme Court's Order Denying Petition for Review, any decision made was based on procedural error and not on the merits." Id. at 15034. Accord Bruni v. Lewis, 847 F.2d at 563.

In both Tacho and the instant case, the Arizona lower court denied the petition for post-conviction relief because the petitioner could have raised the claims on direct appeal or in prior petitions but failed to do so. See Ariz.R.Crim.P. 32.2(a) (3).⁵  Therefore, Rodriguez' six claims of error, previously raised in the Second Petition and dismissed because they could have been raised earlier, were properly dismissed by the district court on the ground of procedural default unless Rodriguez is able to demonstrate cause and prejudice for the default.

Finally, Rodriguez contends that trial counsel erred in failing to conduct a ballistics examination of a pistol found at the hotel where the shooting occurred. This claim, number 8 above, was apparently raised for the first time in the district court. Generally, the court should dismiss the entire habeas petition if there are any unexhausted claims. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). However, a petitioner can satisfy the exhaustion requirement by showing that no state remedies were available when the habeas petition was filed or that any state remedy would be clearly futile. Kellotat v. Cupp, 719 F.2d 1027, 1029 (9th Cir. 1983). Because Rodriguez did not raise the ballistics claim on direct appeal or in the First or Second Petition, any further attempts to raise the ballistics claim in an Arizona court will be barred by Ariz.R.Crim.P. 32.2. Rodriguez has not failed to exhaust his state remedies with respect to the ballistics claim; rather, he has waived presentation of the issue in state court by failing to raise it when state remedies were available. Matias v. Oshiro, 683 F.2d 318, 321 (9th Cir. 1982); cf. Engle v. Isaac, 456 U.S. 107, 125 n. 28 (1982). Therefore, in order for the ballistics claim to be heard in federal court, Rodriguez must demonstrate that this failure should be excused under the cause and prejudice standard. Matias, 683 F.2d at 321.⁶ 

" [T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). As the State convincingly argues, to the extent Rodriguez has raised any argument relating to "cause," he has failed to allege or establish any legally sufficient "cause" for procedural default.

Competent counsel's failure to raise a claim is not sufficient. Id. Ineffective assistance of counsel is cause for a procedural default, but at no stage of this proceeding has Rodriguez attacked the effectiveness of his appellate or post-conviction attorneys. Id.⁷  In addition, effectiveness claims should ordinarily be raised in state court first. Id. at 489. The fact that Rodriguez and his counsel failed to recognize the factual or legal bases for the instant claims when they should have been raised does not constitute cause for procedural default. Id. at 486-87; Engle v. Isaac, 456 U.S. at 133-34. Finally, Rodriguez' claimed lack of legal education and status as a "layman of the law" likewise do not demonstrate cause, particularly because he was represented by counsel during all the relevant proceedings in state court. See Tacho, slip op. at 15037; Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy is not "cause").

Because Rodriguez has failed to show cause for procedural default, this court need not consider whether and to what extent he suffered actual prejudice from the default. Engle v. Isaac, 456 U.S. at 134 n. 43; Roberts v. Arave, 847 F.2d 528, 530 n. 3 (9th Cir. 1988).⁸ 

CONCLUSION

We AFFIRM the district court's denial of Rodriguez' six claims which were raised in the Second Petition and the ballistics claim due to procedural default and a failure to demonstrate cause for the default. We REVERSE the district court's denial of Rodriguez' claim that trial counsel violated his Sixth Amendment rights by declining to call witnesses or present other evidence to establish a defense at trial and REMAND to the district court for a consideration of this issue.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.