Unpublished Disposition, 899 F.2d 18 (9th Cir. 1990)
Annotate this CaseCarroll Eugene BARNES, Plaintiff-Appellant,v.George SUMNER, Warden, Defendant-Appellee.
No. 88-15527.
United States Court of Appeals, Ninth Circuit.
Submitted March 16, 1990.* Decided March 21, 1990.
Before JAMES R. BROWNING, ALARCON and POOLE, Circuit Judges.
MEMORANDUM**
Carroll Eugene Barnes, a Nevada state prisoner, appeals the district court's denial of his petition for a federal writ of habeas corpus made pursuant to 28 U.S.C. § 2254. We review de novo this decision on a habeas petition. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied, 484 U.S. 870 (1987).
Barnes contends that the Nevada state court did not determine whether Barnes's waiver of counsel at his sentencing hearing was "knowing and intelligent" within the meaning of Faretta v. California, 422 U.S. 806, 835 (1975). As a result, Barnes urges that he was denied his sixth amendment right to counsel when sentence was imposed.1
Barnes does not challenge the district court's determination that he procedurally defaulted on this issue by failing to raise it during the direct appeal of his conviction. Accordingly, he must show "cause and prejudice" in order for a federal court to reach the merits of his petition.2 Murray v. Carrier, 477 U.S. 478, 492 (1986).
Barnes asserts that his appellate counsel's failure to raise the issue on direct appeal, in disregard of Barnes's request that the issue be raised, constitutes sufficient "cause" in itself. The Supreme Court has previously rejected this argument. Id. at 488, 492. In order for the omission of appellate counsel to constitute sufficient cause, it must rise to the level of ineffective assistance of counsel. Id. at 492. Furthermore, in order to show such cause, a section 2254 petitioner must first exhaust the claim of ineffective assistance of appellate counsel in the state courts. Id. at 488-89; Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988); 28 U.S.C. § 2254(b). Barnes has made no effort to exhaust the claim of ineffective assistance of appellate counsel. Thus, in determining whether cause existed for Barnes's default, the district court erred in reaching the issue of whether Barnes's appellate counsel was effective within the meaning of Strickland v. Washington, 466 U.S. 668 (1984).
We therefore vacate the judgment of the district court, and remand with instructions to dismiss Barnes's petition without prejudice.
VACATED and REMANDED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Cir.R. 34-4. Accordingly, Barnes's motion for oral argument is denied
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
This is the sole issue presented in Barnes's original pro se petition. Court-appointed counsel filed a supplemental petition raising eight additional issues. However, Barnes apparently abandoned the issues raised in the supplemental petition during the lower court proceedings. These issues have not been raised on appeal
Barnes concedes the omission of the sixth amendment issue on direct appeal, and he acquiesces to Nevada's argument that he must show "cause and prejudice."
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