Unpublished Disposition, 936 F.2d 579 (9th Cir. 1991)

MEMORANDUM^** 

Donald Richard Perry, an Arizona state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas petition. Perry contends that the district court erred in dismissing his petition because of a state procedural default. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we affirm.

In 1983, Perry was convicted of obtaining narcotic drugs by fraud or deceit and was sentenced to a 12-year term of imprisonment. Perry appealed his conviction and sentence to the Arizona Court of Appeals. While his direct appeal was pending Perry filed a petition for post-conviction relief in the trial court, which was denied on the merits. The trial court also denied Perry's motion for rehearing. Perry then filed a petition for review of the denial of his petition for post-conviction relief, which was consolidated with his direct appeal. The Court of Appeals affirmed Perry's conviction and sentence and denied relief on the petition for review. Perry filed pro se a petition for review before the Arizona Supreme Court, in which he raised only two of the seven issues that had been raised before the Court of Appeals. The Supreme Court denied the petition for review.

In 1986, Perry filed his first habeas petition in federal court and raised the two issues that he had raised before the Arizona Supreme Court. This petition was denied on the merits. In 1987, Perry filed his second federal habeas petition and raised the other five issues that he had raised in his direct appeal to the Arizona Court of Appeals. The district court dismissed this petition without prejudice for failure to exhaust state remedies because Perry had not raised these issues in his petition for review before the Arizona Supreme Court. Perry returned to the Arizona Supreme Court and attempted to raise these issues in a petition for special action. The Supreme Court dismissed the petition for special action, stating that all of the issues Perry sought to raise could have been presented to the Court in his first petition for review. In 1989, Perry filed his third federal habeas petition and raised the same five issues that he had raised in his second federal petition. The district court ruled that Perry had procedurally defaulted by failing to raise these issues in his first petition for review before the Arizona Supreme Court, and therefore dismissed the habeas petition.

Perry's contention that he did not procedurally default on the five issues he sought to raise in his third federal habeas petition lacks merit. "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. Tacho v. Martinez, 862 F.2d 1376, 1378 (9th Cir. 1988) (citing Murray v. Carrier, 477 U.S. 478, 485 (1986); Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977)).

Perry argues that he fairly presented these issues to the Arizona Supreme Court in his initial petition for review because (1) he raised all of these issues before the Arizona Court of Appeals, and in his petition for review he requested that the Supreme Court "review the case due to a lot of facts in the case," and (2) under Ariz.R.Crim.P. 32.19(d), the Supreme Court receives a partial record which includes the briefs filed in the Court of Appeals. Therefore, Perry argues that the Supreme Court had an opportunity to review all of the issues that he raised before the Court of Appeals. This argument is meritless because Ariz.R.Crim.P. 31.19(c) (2) states that a petition for review by the Supreme Court must contain a concise statement of " [t]he issues which were decided by the Court of Appeals and which the petitioner wishes to present to the Supreme Court for review." Neither Perry's request that the Supreme Court "review the case due to a lot of facts in the case" nor the Supreme Court's receipt of a copy of the brief filed in the Court of Appeals is an adequate substitute for the required statement of the issues presented for review. See State v. Ikirt, 160 Ariz. 113, 117, 770 P.2d 1159, 1163 (1987) (to invoke the discretionary appellate jurisdiction of the Arizona Supreme Court, the rules of procedure require that a party file an appropriate petition for review setting out the issues for which review is sought; "if an issue is not presented for review it is waived"), cert. denied, 110 S. Ct. 202 (1989); Ariz.R.Crim.P. 31.19(c) (2). Accordingly, because Perry's petition for review by the Supreme Court raised only two of the seven issues decided by the Court of Appeals, he procedurally defaulted by failing to provide the Supreme Court with an opportunity to review the merits of the other five issues he now seeks to raise. See Tacho, 862 F.2d at 1378.¹ 

Nevertheless, a procedural default bars review in federal habeas proceedings only if "the last state court rendering judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 109 S. Ct. 1038, 1043 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)). Perry's argument that the dismissal of his petition for special action does not contain a clear and express statement regarding procedural default is meritless. The state moved to dismiss the petition for special action on the ground that Perry had procedurally defaulted by failing to raise the five issues in his first petition for review. The Arizona Supreme Court granted the state's motion, and in its order dismissing the petition the Court stated "that all such issues either were, or could have been presented to this Court in petitioner's Petition for Review." Thus, the Supreme Court's order satisfies the "plain statement" rule established in Harris v. Reed because it clearly states that the petition for special action was dismissed because Perry had failed to raise these issues in his initial petition for review. See 109 S. Ct. at 1044.

The determination that Perry 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. Isaac, 456 U.S. 107, 129 (1982)). Perry argues that the cause of his failure to raise the issues in his initial petition for review by the Arizona Supreme Court has his status as a pro se litigant without legal training. Perry's argument fails because this court has held that the cause and prejudice standard applies to pro se litigants. Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 908 (9th Cir. 1986) (fact that pro se litigant was illiterate did not constitute cause for procedural default); see also Tacho, 862 F.2d at 1381 (pro se litigant's defective mental condition did not constitute cause for procedural default). Thus, Perry's pro se status does not constitute cause for his procedural default. Accordingly, because Perry has failed to establish cause for his failure to comply with Arizona's procedural requirements, we need not consider whether he suffered actual prejudice. See id.

AFFIRMED.