Unpublished Disposition, 888 F.2d 1394 (9th Cir. 1989)

MEMORANDUM^** 

Petitioner Anthony Wayne Ridings seeks reversal of a district court judgment denying his petition for a writ of habeas corpus. Ridings' petition alleges that his state court sentences violated the terms of his plea agreement and that both his trial and post-conviction counsel were ineffective. The district court dismissed the petition based on Ridings' affirmative allegation in his petition that he had failed to present his claims to the state's highest court. We reverse and remand the action to the district court to determine the following issues: (1) Are there any state remedies presently available to petitioner, and (2) if no state remedies are presently available, was there cause for petitioner's failure to comply with the state exhaustion rule and actual prejudice to petitioner resulting from the alleged violations?

STATEMENT OF FACTS

Ridings filed a petition for a writ of habeas corpus on May 26, 1988. His petition is based on two grounds, that the sentence imposed by the trial court was not in accordance with his plea agreement and that he received ineffective assistance of counsel at the state trial and appellate level and during the state post-conviction process. In his petition, Ridings admitted that he failed to take his claim before the Arizona Supreme Court.

Defendant was convicted of second degree murder and conspiracy to commit murder after pleading no contest pursuant to a plea agreement. In accordance with the agreement, the government recommended an agreed-upon sentence which was not adopted by the court. Ridings received a sentence of 30-60 years for second degree murder and a sentence of 20-30 years for conspiracy to commit murder. He filed a notice of appeal of his sentence on September 25, 1977. On July 6, 1979, the Arizona Court of Appeals affirmed the trial court sentence. No appeal to the Arizona Supreme Court was filed. Petitioner claims that his original trial and appellate counsel rendered ineffective assistance by not filing that appeal. He alleges that from the time of sentencing through the time of appeal, he had no contact with his counsel.

Ridings then filed a Post-Conviction Relief Petition with the Superior Court of Maricopa County. He was appointed new counsel from the Maricopa County Public Defender's Office. On September 4, 1985, the superior court denied the Post-Conviction Relief Petition. In a letter dated September 12, 1985, petitioner's counsel informed Ridings of the court's decision and told Ridings that he agreed with the court's decision and would take no further action on Ridings' behalf. Counsel also stated that if Ridings wanted to appeal the decision himself, he would need to conform to the procedural rules. Rule 32.9 of the Arizona Rules of Criminal Procedure specifies that a motion for rehearing must by filed within ten days after the ruling. Ridings did not file a motion for rehearing. He claims that because he did not have access to Arizona legal materials in the Missouri State Penitentiary, he was unaware of the time or process for rehearing or appeal. Again, petitioner alleges ineffective assistance of counsel, this time against his post-conviction counsel, for the late notification of the decision and for not assisting him in appealing the post-conviction decision.

On July 12, 1988, the District Court of Arizona issued an order summarily dismissing the petition for writ of habeas corpus based on petitioner's affirmative statement in his petition that he had failed to present his claims to the Arizona Supreme Court. Judgment was entered accordingly. On July 25, 1988, Ridings filed a motion for issuance of a certificate of probable cause and for appointment of counsel. On February 21, 1989, the district court issued the certificate limited to the district court's denial of his application for a petition for writ of habeas corpus.

ANALYSIS

We review a district court decision on a petition for a writ of habeas corpus de novo. Reiger v. Christensen, 789 F.2d 1425 (9th Cir. 1986).

Normally, before a district court may consider a state prisoner's application for relief under 28 U.S.C. § 2254, the petitioner must have exhausted every claim raised in the petition in state court. Rose v. Lundy, 455 U.S. 509 (1982). To exhaust state court remedies, a petitioner must present each claim raised in the petition in federal court to the highest state court for review. Carothers v. Rhay, 594 F.2d 225 (9th Cir. 1979). If the petition includes both exhausted and unexhausted claims, the entire petition must be dismissed. Szeto v. Rushen, 709 F.2d 1340 (9th Cir. 1983). Finally, the state's highest court must dispose of the claim on the merits to satisfy the exhaustion requirements. Hayes v. Kincheloe, 784 F.2d 1434 (9th Cir. 1986), cert denied, 108 S. Ct. 198 (1987).

Notwithstanding this precedent, failure to pursue state remedies is not an absolute bar to federal habeas corpus relief. Granberry v. Greer, 107 S. Ct. 1671, 1674 (1987). Federal courts have the power to look beyond state procedural forfeitures if the defendant can show both "cause" for noncompliance with the state rule and actual "prejudice" resulting from the alleged constitutional violation. See Smith v. Murray, 477 U.S. 527, 533 (1986) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)); Reed v. Ross, 468 U.S. 1, 11 (1984).

In Matias v. Oshiro, 683 F.2d 318 (9th Cir. 1982), this court reversed and remanded a district court dismissal of a petition for a writ of habeas corpus because, although the district court properly concluded that the substance of the petitioner's ineffective assistance of counsel claim had not been presented to the state court and that there were no further state remedies available to the petitioner, the district court did not make findings on the issue of whether the petitioner's failure to raise his claim in the state court should be excused under the cause and prejudice standard.

In the instant action, Ridings failed to meet the state procedural requirements because he did not seek review of his claims by the Arizona Supreme Court on direct appeal and because he did not appeal the decision on his post-conviction relief petition. Ridings also failed to raise his claim for ineffective assistance of counsel in any state forum. However, neither the state nor the district court advises us whether there are any state remedies of which petitioner could now avail himself. If there is such an available state remedy, Ridings must first pursue it. If there is no such remedy now available, Ridings would be able to obtain federal review if he could show that the ineffectiveness of his counsel constituted sufficient "cause" for his failure to bring these claims to a state court and that he was "prejudiced" thereby.

The district court dismissal did not consider this issue, but instead summarily dismissed the petition based on Ridings' statement in his petition that he did not bring his claim to the highest state court. Therefore, we reverse and remand the action to the district court to determine what, if any, state remedies are now available to petitioner and, if no such remedies are available, whether there was sufficient cause and prejudice to excuse Ridings' failure to bring his claims before the state courts. REVERSED.