Unpublished Disposition, 930 F.2d 26 (9th Cir. 1989)

MEMORANDUM^* 

STATEMENT OF THE CASE

In December of 1983 Fletcher Charles Casey, Jr. was charged with one count of armed robbery for his alleged holdup of the Handee Liquors store located at 1601 North 7th Avenue in Phoenix, Arizona. Casey was on probation when he allegedly committed the crime and had three prior convictions. Casey pleaded guilty to nondangerous armed robbery with one prior conviction. The plea called for a fifteen year prison term to be served concurrently with the sentence in another case. Casey failed to appeal his conviction or sentence.

In May of 1985 Casey petitioned the trial court for post-conviction relief, claiming that he was denied the effective assistance of counsel and that his plea was involuntary. Casey alleged that his appointed counsel did not inform him of certain affirmative defenses and that he was unaware the plea agreement made him ineligible to receive good-time credits. On September 4, 1985, the trial court summarily denied the petition. Casey failed to seek review of the denial.

On March 5, 1987, Casey filed a second petition with the trial court based on the same grounds. The State responded that Casey was precluded from raising the same issues he raised in his first petition. The court summarily dismissed Casey's second petition and denied his motion for a rehearing.

The Arizona Court of Appeals granted Casey's petition for review. The court denied relief without reaching the merits, finding instead that Casey had failed to preserve his claims due to a procedural default. The Arizona Supreme Court denied Casey's petition for review.

Casey filed a petition for habeas corpus in federal court on November 15, 1988. Respondent moved to dismiss the petition based on the state procedural default. On July 20, 1989 the district court adopted a federal magistrate's recommendation that the petition be dismissed due to the procedural default and dismissed the case. Casey now appeals to this court. We affirm.

ANALYSIS

We agree with the district court that the unavailability of state remedies satisfies the exhaustion requirement. Matias v. Oshiro, 683 F.2d 318 (9th Cir. 1982). The issue presented by this appeal, therefore, is whether the district court erred in dismissing Casey's petition because of a state procedural default. We review de novo a district court's denial of a petition for habeas corpus. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).

We turn first to Casey's argument that we are required to reach the merits of his constitutional claims under Harris v. Reed, 109 S. Ct. 1038 (1989), because "the last state court rendering a judgment in the case" did not " 'clearly and expressly' state [ ] that its judgment rest [ed] on a state procedural bar." Id. at 1043 (citation omitted). Casey misreads Harris. The last state court to render judgment in this case was the Arizona Court of Appeals, which did clearly and expressly rest its judgment on procedural grounds. The Supreme Court of Arizona did not render judgment but simply declined to review the case. See Ariz.Rev.Stat.Ann. Sec. 12-120.24 (1987 & 1990 Supp.); cf. Barker v. Estelle, 913 F.2d 1433, 1437 n. 3 (9th Cir. 1990) (a state supreme court's summary denial of an original habeas petition without case or comment is a judgment).

Nor are we required to reach the merits of Casey's claims because the Arizona Supreme Court somehow adjudicated the merits of his case. See Tacho v. Martinez, 862 F.2d 1376, 1378 9th Cir. 1988). The Arizona Supreme Court's refusal to review Casey's petition cannot be considered an adjudication on the merits after the Arizona Court of Appeals clearly declined to reach the merits based on a procedural default. See id. at 1378-80.

Casey also argues that there was no state procedural default. We disagree. "It is well settled that when a petitioner at one time could have raised his constitutional claim in state court but did not and is now barred from doing so by a state rule of procedure, he has procedurally defaulted on his claim." Id. at 1378 (citing Murray v. Carrier, 477 U.S. 478, 485 (1986); Wainwright v. Sykes 433 U.S. 72, 86-87 (1977)). In his petition for a rehearing, Casey did not comply with the requirements of Arizona Rule of Criminal Procedure 32.9(a), because he did not set forth one claim with sufficient specificity and failed to raise the other claim at all. Arizona courts have made clear that a petitioner must comply with the procedural requirements of Rule 32.9(a) to preserve an issue for review. State v. Carriger, 143 Ariz. 142, 146, 692 P.2d 991, 995 (1984), cert. denied, 471 U.S. 1111 (1985); State v. Moore, 125 Ariz. 528, 611 P.2d 115 (Ariz.Ct.App.1980).

Finding that Casey procedurally defaulted does not end our analysis. Although "a procedural default bars litigation of a constitutional claim in state court," a state prisoner may still obtain federal habeas relief upon "a showing of 'cause and actual prejudice.' " Reed v. Ross, 468 U.S. 1, 11 (1984) (citing Engle v. Isasc, 456 U.S. 107, 129 (1982)). Casey explains that he failed to comply with Rule 32.9(a) because he was an "unlearned" pro se petitioner with a "gross lack of knowledge in the technicalities of post-conviction appellate procedure." We are not persuaded by Casey's argument: Sykes' cause and prejudicial standard applies to pro se petitioners, Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 908 (9th Cir. 1986), and Casey's ignorance of Arizona's legal process, which is a direct result of his pro se status, does not demonstrate cause under that standard. " 'Cause' is a legitimate excuse for the default." Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984) (citation omitted). This court has held that claims of illiteracy and defective mental conditions do not satisfy Sykes' cause standard. Hughes 800 F.2d at 909 (illeteracy does not constitue cause); Tacho, 862 F.2d at 1381 (defective mental condition does not constitute cause). If illiteracy does not excuse a procedural default, a fortiori a petitioner's lack of knowledge in general is no excuse.

Because Casey has failed to give any legitimate reason for his noncompliance with Arizona's procedural requirements, "we need not consider whether he suffered actual prejudice," and we do not view Casey's petition as an " 'extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent,' allowing for us to 'grant the writ even in the absence of a showing of cause for the procedural default.' " Tacho, 862 F.2d at 1381 & n. 7 (citations omitted).

AFFIRMED.