Unpublished Disposition, 912 F.2d 469 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 912 F.2d 469 (9th Cir. 1990)

Charles Anderson MILLER, Petitioner-Appellant,v.Daniel B. VASQUEZ, et al., Respondents-Appellees.

No. 89-56237.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 3, 1990.* Decided Aug. 24, 1990.

Before JAMES R. BROWNING, WALLACE, and BRUNETTI, Circuit Judges.


MEMORANDUM

In our previous decision in this case, Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989) (Miller I), we held that a police officer's failure to collect potentially exculpatory evidence would violate due process if done in bad faith. We remanded to the district court for a determination of Miller's bad faith claim. Id. at 1121. We specified that " [o]n remand, the district court should satisfy itself that Miller exhausted th [e] [bad faith] issue in state court. If Miller exhausted this claim, then the district court may want to rule on Miller's request for an evidentiary hearing." Id. On remand, the district court found that Miller had exhausted his state remedies on the bad faith claim, but had presented no proof of bad faith. The district court consequently dismissed Miller's petition for habeas corpus. Miller appeals once more. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

* We first examine whether Miller has exhausted his state remedies. "We review de novo whether a claim was exhausted in state court." Harris v. Pulley, 852 F.2d 1546, 1562 (9th Cir. 1988), cert. denied, 110 S. Ct. 854 (1990). Miller's "habeas petition should have been dismissed if state remedies had not been exhausted as to any of the federal claims." Castille v. Peoples, 109 S. Ct. 1056, 1059 (1989).

The district court adopted the finding of the magistrate that Miller had exhausted his remedies in this case. Vasquez contests this finding, arguing that Miller fails the exhaustion requirement because he "has not sought relief in California beyond his petition for review to the California Supreme Court." Vasquez cites Castille, apparently for the proposition that by failing to pursue relief beyond his petition for review to the California Supreme Court, Miller has failed to exhaust his state remedies. Castille, however, does not support this proposition.

In Castille, the Supreme Court held that a court may not find that a petitioner has exhausted his state remedies for a particular claim "where the claim has been presented for the first and only time in a procedural context in which its merits will not be considered unless 'there are special and important reasons therefore.' " 109 S. Ct. at 1060, quoting Pa.Rule App.Proc. 1114. The holding in Castille does not apply to this case since, as Vasquez admits in his brief, Miller's contention regarding the failure of the police to collect evidence was presented at least to the California intermediate court, as well as the state Supreme Court. Miller's petition for review to the California Supreme Court on this issue was therefore not the "first and only time" the issue was raised. Hence, the Castille rule does not apply.

Vasquez's position that Miller is required to pursue collateral state remedies before filing for habeas in federal court was also unequivocally rejected in Castille. Presented with a similar argument, the Supreme Court responded by stating that "once the state courts have ruled upon a claim, it is not necessary for a petitioner 'to ask the state for collateral relief, based upon the same evidence and issues already decided by direct review.' " Id. at 1059, quoting Brown v. Allen, 344 U.S. 443, 447 (1953); see also Turner v. Compoy, 827 F.2d 526, 528-30 (9th Cir. 1987), cert. denied, 109 S. Ct. 1327 (1989). We conclude that Miller exhausted his state court remedies on this issue.

II

We review the district court's decision to deny a petition for habeas corpus de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989).

Under the test set out in our earlier opinion in Miller I, "a bad faith failure to collect potentially exculpatory evidence would violate the due process clause." Miller I, 868 F.2d at 1121. The magistrate, relying upon the state court's determination regarding bad faith, concluded that the police did not act in bad faith. The district court concurred with and adopted the magistrate's conclusion. In federal habeas proceedings, a state court's factual determinations are presumptively correct. 28 U.S.C. § 2254(d); Patton v. Yount, 467 U.S. 1025, 1037 n. 12 (1984); Sumner v. Mata, 455 U.S. 591, 592-93 (1982).

As the magistrate's report indicates, the state trial court found no evidence of bad faith or improper bias by the police. We see no reason to disturb the state trial court's determination that the police did not act in bad faith. We therefore adopt the opinion of the magistrate and district court on this issue.

Since the police did not act in bad faith, Miller was not denied due process by the police's failure to collect potentially exculpatory evidence. See Miller I, 868 F.2d at 1121. The district court therefore properly dismissed Miller's petition for habeas corpus.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

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