Unpublished Disposition, 841 F.2d 1128 (9th Cir. 1987)

MEMORANDUM^* 

Appellant Cordes was convicted in the Superior Court of the State of California for conspiracy to commit murder in violation of Cal. Penal Code Secs. 182, 187. She was acquitted of the underlying substantive murder count. Appellant is presently in custody at the California Institute for Women at Frontera, California, pursuant to a life imprisonment sentence.

Cordes appealed to the California Court of Appeal for the Third Appellate District raising several issues including the contention that the trial court erred in not instructing the jury it could find appellant guilty of second degree murder and thus the conviction for conspiracy is inconsistent in that it is not a conviction for conspiracy to commit second degree murder. The Court of Appeal affirmed the judgment of conviction. A petition for hearing was filed with the California Supreme Court which denied the petition. The appellant's conviction became final on October 24, 1982.

On October 4, 1983 appellant filed a petition for writ of habeas corpus in Sacramento County Superior Court alleging that her conviction must be reduced to conspiracy to commit second degree murder. That petition was denied on October 28, 1983. Petitions for writ of habeas corpus were subsequently denied by the Third District Court of Appeal and the California Supreme Court.

On July 27, 1984 appellant filed a petition for habeas corpus in the United States District Court for the Central District of California. That petition, which alleged among other issues ineffective assistance of counsel for failing to request an instruction on different degrees of murder, was subsequently transferred to the United States District Court for the Eastern District of California. On November 16, 1984 appellee, the Superintendent of the California Institution for Women at Frontera, filed her answer contending that the petition contained both exhausted and unexhausted claims. In particular appellee alleged in her answer that there was an unexhausted claim for ineffective assistance of counsel in appellant's petition.

On October 23, 1986 the magistrate filed his findings and recommendations. On December 9, 1986 the magistrate's findings and recommendations were adopted in full by District Judge Edward J. Garcia and appellant's petition was denied.

On December 15, 1986 appellant filed objections. Because those objections were untimely, Judge Garcia construed them as a notice of appeal and request for certificate of probable cause. Appellant's application for a certificate of probable cause was granted on February 4, 1987.

On June 30, 1987, Judges Alarcon and Thompson of this Court appointed counsel and stated that it appeared appellant had raised an issue of ineffective assistance of counsel and requested briefing on the issue of exhaustion of state remedies as well as on the merits of the issues.

Item 10 of appellant's petition for a writ of habeas corpus filed on July 27, 1984 alleges "Councel [sic] did not insist on the jury being instructed on the different degrees." The petition further states "Councel [sic] for me did not ask that the Jury be instructed as to the different Murder Degrees, as in 1st and 2nd, as S. Cordes has plead to 2nd Degree. Councel [sic] failed to mention it to the Court." In her certificate of probable cause appellant alleges that her trial counsel "neglected" to inform her of the connotations and application of the overt acts alleged, and offered no defense.

A petition for habeas corpus ought not to be scrutinized with technical nicety. Holiday v. Johnston, 313 U.S. 342, 350 (1941). To make the protection afforded by the writ of habeas corpus effective for "unlettered prisoners without friends or funds," federal courts have long disregarded legalistic requirements in examining applications for the writ ..." Dorr v. Burford, 339 U.S. 200, 203 (1950).

In this circuit we have held that habeas corpus petitions drafted by laymen should be read with a measure of tolerance. Pike v. Dickson, 323 F.2d 856, 857 (9th Cir. 1963).

A pro se complaint however inartfully plead must be held to less stringent standards than formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). Pleadings should be liberally construed in the interests of justice, particularly when a pleader is not learned in the law. Johnson v. Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975).

Construing appellant's allegations concerning her counsel in a light most favorable to her and in the interests of justice, it is a reasonable interpretation that appellant complains of ineffective assistance of counsel.

It is well-established that exhaustion of state remedies is a prerequisite to consideration by a federal court of each claim sought to be presented in habeas corpus proceedings. Duckworth v. Serrano, 454 U.S. 1, 3-4 (1981); Carothers v. Hays, 594 F.2d 225, 228 (9th Cir. 1979) ("State remedies have not been exhausted unless the petitioner's federal claim has been 'fairly presented to the state courts' and the highest state court has disposed of the claim on the merits."); 28 U.S.C. 2254(b). An applicant for a writ of habeas corpus is deemed not to have exhausted his state court remedies if he has the right under the law of the state to raise, by an available procedure, the question presented. 28 U.S.C. § 2254(c).

A federal district court must dismiss a state prisoner's habeas corpus petition containing both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 513-14, 522 (1982); Szeto v. Rushen, 709 F.2d 1340, 1341 (9th Cir. 1983); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983).

The record reflects that appellant's allegation of ineffective assistance of counsel was not considered in the state court proceedings. Ineffective assistance of counsel was not presented to the California state courts at any level. See Carothers, supra. The California Supreme Court did not address the merits of that issue as required before federal adjudication is appropriate. Though other of appellant's claims were exhausted, the presence of this unexhausted claim for ineffective assistance of counsel taints the entire petition. The district court was correct in denying the petition though it did so for other reasons. Appellant should first exhaust her ineffective assistance of counsel claim in the state courts before proceeding in the federal courts.

We affirm.