Unpublished Disposition, 914 F.2d 263 (9th Cir. 1988)

MEMORANDUM^** 

Alvin Myman, an Arizona state prisoner, appeals pro se the district court's order denying his 28 U.S.C. § 2254 habeas petition for failure to exhaust state remedies.¹  Myman contends that his plea of no contest was involuntary because the state trial court did not properly advise him of a restitution penalty before accepting his plea, and that exhaustion of this claim is not required because further pursuit of it in state court would be futile. He also contends that imposition of restitution after the initial sentencing hearing constituted double jeopardy, and that he was denied effective assistance of counsel during the criminal proceedings.

In January 1987 Myman pleaded no contest in Arizona state court to possession of a narcotic drug and conspiracy to commit arson of an unoccupied structure. The state court sentenced him to two consecutive five-year prison terms on March 5, 1987. On March 9, 1987, the court informed Myman that due to its oversight, it had failed to impose restitution. Myman waived his right to resentencing, and the state court ordered him to pay $3,469.60 restitution.

Myman appealed to the Arizona Court of Appeals, which held that his plea was not intelligently made because the trial court failed to advise him of the amount of restitution before accepting his plea. The court of appeals vacated Myman's conviction and sentence and remanded to permit Myman to withdraw his plea. Upon the state's petition for review, the Arizona Supreme Court vacated the court of appeals' decision on the basis that Myman could not challenge the voluntariness of his plea for the first time on direct appeal. The court stated that Myman properly should have presented this issue in a petition for post-conviction relief under Arizona Rule of Criminal Procedure 32.

On August 11, 1988, Myman filed a Rule 32 petition in the state trial court. He contended that his plea was invalid, that he was denied effective assistance of counsel during the plea and sentencing proceedings, that restitution was improper, and that enhancement of his sentence based upon dismissed charges violated his plea agreement.

On December 28, 1988, Myman filed pro se this federal habeas petition, contending that his plea was involuntary because the state court failed properly to advise him of the restitution penalty and that the court's restitution order constituted double jeopardy.²  Respondents filed a motion to dismiss the petition on the ground that Myman had failed to exhaust his state remedies as to his double jeopardy claim.

The federal magistrate recommended that Myman's habeas petition be dismissed without prejudice for failure to exhaust state remedies. The magistrate's report stated that Myman failed to raise his double jeopardy claim in state court and that Myman's claim that he was not properly advised of the possible restitution penalty was still pending in a state Rule 32 proceeding for post-conviction relief. The district court adopted the magistrate's report and recommendation and entered a judgment dismissing the action. Myman filed a timely appeal from the district court judgment.

We review do novo the denial of a section 2254 habeas petition. Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir. 1988).

As a matter of comity, a federal court normally will not consider a habeas petition unless the petitioner has exhausted available state judicial remedies on every ground presented in the petition. See 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 522 (1982). "If a petitioner presents his claim to the highest state court and that court disposes of the claim on the merits, the exhaustion requirement has been satisfied." Hayes v. Kincheloe, 784 F.2d 1434, 1437 (9th Cir. 1986), cert. denied, 484 U.S. 871 (1987). However, exhaustion is excused "if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief." Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam); see 28 U.S.C. § 2254(b).

Here, Myman did not exhaust his available state remedies as to his double jeopardy claim because he failed to raise the issue in any state court proceeding. See 28 U.S.C. § 2254(b); Hayes, 784 F.2d at 1437.

B. Involuntary Plea.

When Myman filed his habeas petition in December 1988, his Rule 32 petition had been pending in the state trial court for approximately four months. Myman argues that it was futile for him to pursue his state remedies as to his involuntary plea claim because of the state court's delay in hearing this claim. However, a four-month delay does not render futile an effort to obtain state court relief. See Aldan v. Salas, 718 F.2d 889, 891 (9th Cir. 1983). Therefore, the state court's delay did not excuse Myman's failure to exhaust his available state remedies as to his involuntary plea claim.³  See Duckworth, 454 U.S. at 3; Aldan, 718 F.2d at 891.

The district court entered an order which adopted the magistrate's report and recommendation "in its entirety." The magistrate recommended that Myman's habeas petition be dismissed without prejudice for failure to exhaust state remedies. However, the district court judgment merely dismissed Myman's action. Accordingly, the district court judgment is modified to state that Myman's action is dismissed "without prejudice." So modified, the judgment is AFFIRMED.---------------