Unpublished Disposition, 845 F.2d 1029 (9th Cir. 1988)

MEMORANDUM^** 

Russell S. Olds, a member of the Arizona bar and formerly an Arizona state prisoner, appeals pro se the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus from a criminal contempt conviction. Olds contends that the state court contempt proceedings deprived him of his right to a jury trial, due process, and his right to an appeal. He also contends that the district court erred in denying his petition without reviewing the entire record, and in failing to find that Olds's compliance with the order to file an opening brief would have irrevocably jeopardized his client's right to effective assistance of counsel. We affirm.

The Arizona Court of Appeals held Olds in contempt for failure to obey an order to file an opening brief, and sentenced him to serve five days in jail and pay a $300 fine. Olds filed a special action petition with the Arizona Supreme Court, but that Court declined to review his case. He subsequently brought this 28 U.S.C. § 2254 petition.

This court reviews de novo the denial of a petition for a writ of habeas corpus. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841 (1985).

First, the Arizona courts did not violate Olds's constitutional rights by convicting him of criminal contempt without a jury. A petty contempt offense may be tried without a jury. See Muniz v. Hoffman, 422 U.S. 454, 475-76 (1975). The Arizona contempt law under which Olds was convicted provides for a maximum sentence of six months and a $300 fine. Arizona Rule of Crim.P. 33.4(a). Olds was only sentenced to 5 days and $300. This clearly qualifies as a petty offense under Muniz, which acknowledged that a six-month sentence plus a $500 fine was a petty offense. Id. Therefore, because Olds's contempt citation was a petty offense, he was not entitled to a jury trial.

Second, Olds was not denied due process when the same judges whose order he refused to obey also sat in judgment on his contempt citation. The judge whose order was disobeyed may conduct contempt proceedings without violating the Constitution. Fed. R. Crim. P. 42(b). Although there is an exception where the judge is biased, see Ungar v. Sarafite, 376 U.S. 575, 583-88 (1964), Olds presents no evidence that the appeals court judges were biased in this case. Therefore, Olds was not denied due process when the judges whose order he disobeyed also sat in judgment in the contempt proceeding.

Third, Olds was not entitled to an appeal from his contempt conviction. To state a claim for federal habeas relief under 28 U.S.C. § 2254, a petitioner must allege a deprivation of his federal rights. Engle v. Isaac, 456 U.S. 107, 119 (1982); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). There is no federal constitutional right to state appellate review of a state criminal conviction. See Estelle v. Dorrough, 420 U.S. 534, 536 (1975) (per curiam).

Arizona state law provides for discretionary review of decisions by the Court of Appeals by way of a special action petition filed in the Arizona Supreme Court. Ariz. Constitution Article 6 Sec. 5 subsection 4. See Western Waste Ser. Sys. v. Superior Ct., 120 Ariz. 90, 91, 584 P.2d 554, 555 (1978). The fact that the appellate court judgment may be clearly erroneous does not convert this discretionary appeal into an appeal as of right. See McRae v. Forren, 5 Ariz.App. 465, 470, 428 P.2d 129, 134 (1967) (granting of writ of certiorari is always discretionary with the court); 17A A.R.S. Special Actions, Rules of Proc., Rule 1(a) (1973) (special action replaces writ of certiorari in Arizona). Olds does not allege that the Arizona Supreme Court denied him due process in determining whether to consider his appeal. Accordingly, he fails to allege that the court's denial of his appeal resulted in violation of his federal constitutional rights.

Fourth, the district court did not err in denying Olds's petition without reviewing the entire record. If a district court denies a petition without an evidentiary hearing, the record on appeal must show that the district court independently reviewed all relevant portions of the state court record in deciding the merits of the petitioner's claims. Reiger v. Christensen, 789 F.2d 1425, 1428 (9th Cir. 1986).

The district court read the transcripts of the hearings at which Olds refused to comply with the Court of Appeals' order to submit an opening brief. These were the only relevant facts surrounding his petition. Therefore, the district court did not err in failing to review the entire state court record.

Finally, Olds did not have a right to disobey the contempt citation on the ground that, had he complied with the order to file the allegedly deficient opening brief, he would have jeopardized his client's right to effective assistance of counsel.

An attorney who believes that a court order is erroneous must nevertheless obey it. Chapman v. Pacific Tel. & Tel. Co., 613 F.2d 193, 197 (9th Cir. 1979). If an adverse judgment should result, the attorney may later claim error on appeal; for the moment, however, unless and until the order is invalidated, the attorney has no choice but to comply with the order. Id.; United States v. Armstrong, 781 F.2d 700, 707 (9th Cir. 1986). Similarly, an attorney may not challenge during the contempt proceedings the legal or factual basis for the underlying order. Donovan v. Sovereign Sec., 726 F.2d 55, 60 (2nd Cir. 1984).

A narrow exception to this rule permits an individual to refuse to obey an order and to challenge the validity of the order in subsequent contempt proceedings. See, e.g., Maness v. Meyers, 419 U.S. 449, 460 (1975); In re Grand Jury Proceedings, 601 F.2d 162, 168-69 (5th Cir. 1979). This rule only applies, however, where compliance with the order would result in the irrevocable and permanent surrender of a constitutional right. Id.

In this case, there was no danger that Olds's compliance with the order would have irrevocably and permanently deprived his client of a constitutional right. Arizona Rule of Criminal Procedure 32 provides post-conviction relief where a factual deficiency hinders a direct appeal. See State v. Bell, 23 Ariz.App. 169, 171, 531 P.2d 545, 547 (1975). Thus, Olds should have complied with the order and sought relief by way of Rule 32 to resolve evidentiary questions which he claims prevented him from adequately representing his client.

AFFIRMED.