Unpublished Disposition, 912 F.2d 468 (9th Cir. 1989)

No. 89-56239.

United States Court of Appeals, Ninth Circuit.

Before REINHARDT and LEAVY, Circuit Judges, and SAMUEL P. KING^** , District Judge.

MEMORANDUM^*** 

Petitioner Herman Govan, Jr., a California prisoner appearing pro se, appeals from the district court's order denying his 28 U.S.C. § 2254 habeas corpus petition without prejudice for failure to exhaust state remedies. We review the denial de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we affirm.

FACTS AND PROCEEDINGS

Govan was convicted by a jury of one count of lewd and lascivious conduct with a minor in violation of Cal.Pen.Code Sec. 288(a) on December 8, 1987. The conviction was affirmed by the California Court of Appeals on July 10, 1989. On August 10, 1989, Govan filed a timely petition for review in the California Supreme Court. While that appeal was pending, Govan filed this petition for writ of habeas corpus in the federal district court. On October 11, 1989, the district court dismissed Govan's habeas petition without prejudice to refile because it was "apparent" he had not as yet exhausted his state remedies on direct appeal from his criminal conviction. See 28 U.S.C. § 2254(b). On October 25, 1989, the state supreme court denied Govan's petition for review.

Govan filed a timely notice of appeal on November 3, 1989. We granted Govan's request for a certificate of probable cause and thus have jurisdiction pursuant to 28 U.S.C. § 2253.

DISCUSSION

Govan argues that he had in fact exhausted his state remedies as of September 10, 1989, or in the alternative, that exhaustion should be excused due to "the existence of circumstances rendering [his state remedies] ineffective to protect" his rights. See 28 U.S.C. § 2254(b).

Relying on California Rule of Court 24(a), Govan argues that his petition for review in the California Supreme Court was denied by operation of law on September 10, 1989, thirty days after it was filed on August 10, 1989. If Govan's calculations are correct, he had exhausted his state remedies when he filed his habeas petition on September 15, 1989.

Govan's contention, however, is based on a erroneous construction of the California Rules of Court. California Rule of Court 28(a) (2) provides in pertinent part:

[On petition ] Within 60 days after the filing ... of the last timely petition for review, the Supreme Court may order review of a Court of Appeal decision. Within the original 60-day period or any extension of it the Supreme Court may, for good cause, extend the time for one or more additional periods amounting to not more than an additional 30 days in the aggregate. The total time, including extensions, shall not exceed 90 days after the filing of the last timely petition for review.

On September 15, 1989, within sixty days of the filing of the petition for review, the California Supreme Court extended the time for granting or denying review in Govan's case until November 8, 1989. Govan's petition was thereafter denied within the ninety-day period on October 25, 1989. Pursuant to California Rule of Court 24(a), the supreme court's decision to deny review then became "final 30 days after" it was filed. It is therefore clear that Govan's state appeal was still pending when the district court dismissed his habeas petition on October 11, 1989.

In the alternative, Govan argues that the California Supreme Court is not a neutral forum and therefore his state court remedies are "ineffective." Govan has filed a class action against the Judicial Council of California alleging that it has been derelict in its duty to see that prisoners, indigents, and pro se litigants have access to the courts. The Chief Judge and one other judge of the California Supreme Court are members of the twenty-member Council, which will be defended in that action by the Attorney General, the same individual representing the State in Govan's criminal appeal. Govan maintains this conflict of interest renders his state remedy ineffective to protect his rights.

It is well established that exhaustion will be excused if the available state remedy is in fact an ineffective avenue for presenting the petitioner's claims to the state courts. See 28 U.S.C. § 2254(b). A state remedy has been found to be "ineffective" where the appeal would be futile in light of well-established state law, Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir. 1981), would result in unreasonable delay, Okot v. Callahan, 788 F.2d 631, 633 (9th Cir. 1986) (per curiam), or where the state "postconviction procedures are technically inexhaustible." Castille v. Peoples, 109 S. Ct. 1056, 1059 (1989).

We cannot conclude that the existence of Govan's civil action against the state Judicial Council renders his state criminal remedies ineffective or inadequate. We will not assume that a court of appeal composed of nine individuals is incapable of fairly deciding a petition for review where the defendant is suing an organization, of which two of those individuals are members, in a separate and unrelated action. Cf. Johnson v. Mississippi, 403 U.S. 212, 215-16 (1971) (due process dictates that a trial judge recuse himself where he was personally prejudiced against civil rights litigants and where immediately prior to the contempt adjudication he "was a [losing] defendant in one of petitioner's civil rights suits"). A petitioner could easily circumvent the exhaustion requirements of 28 U.S.C. § 2254(b) by simply suing the Judicial Council were we to create such a presumption. We decline to do so.

Although we conclude that Govan had not exhausted his state remedies by the time he filed his habeas petition in the district court, we are informed that on October 25, 1989, the California Supreme Court denied his petition for review. However, even if we were to take notice of the supreme court's order denying review, the common practice is "to determine the question of exhaustion as of the time a habeas corpus petition was filed, not as of the time the case is heard on appeal, and to require a new petition to be filed if state remedies are subsequently exhausted." Domaingue v. Butterworth, 641 F.2d 8, 14 (1st Cir. 1981). See Salama v. Virginia, 605 F.2d 1329 (4th Cir. 1979).

As the petition was "denied without prejudice to refiling after exhaustion of state remedies [,]" Govan is free to refile his petition in the district court. Should a new petition be filed, it will be up to the district court to determine, among other things, whether the claims set forth in the habeas petition were "fairly presented" to the California Supreme Court. See Castille v. Peoples, 109 S. Ct. 1056 (1989).

AFFIRMED.