Unpublished Disposition, 851 F.2d 360 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 851 F.2d 360 (9th Cir. 1987)

Daniel BECK, Petitioner-Appellant,v.Samuel LEWIS; Attorney General of the State of Arizona,Respondents-Appellees.

No. 87-2160.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 1988.Decided June 24, 1988.

Before RUGGERO J. ALDISERT,**  ALARCON and CYNTHIA HOLCOMB HALL, Circuit Judges.


MEMORANDUM* 

Daniel Beck (Beck) appeals from the dismissal of his pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (1982). Beck's section 2254 petition contained the following three federal constitutional claims:

One. He was convicted of a crime, that had previously been dismissed with prejudice, in violation of his right not to be exposed to double jeopardy.

Two. He was denied due process of the law in violation of the federal constitution because of the admission into evidence of his son's prior inconsistent statement for the purpose of proving the truth of the matter asserted.

Three. The Arizona law limiting the use of impeachment testimony to corroborate the prosecution's evidence of guilt to sex crimes violates the equal protection clause.

The Attorney General of the State of Arizona (State), on behalf of the respondent state officials, filed a motion to dismiss Beck's petition. The State requested that the petition be dismissed pursuant to Rose v. Lundy, 455 U.S. 509 (1982) because it contained exhausted and unexhausted claims.

The district court referred this matter to a magistrate for his report and recommendation. The magistrate's report and recommendation was filed on March 16, 1987. The report did not address the State's contention that the section 2254 petition contains exhausted and unexhausted claims.

On April 20, 1987, Beck filed a pro se motion in which he conceded that he had "incorrectly submitted a 'mixed' petition containing both exhausted and unexhausted claims" contrary to Rose v. Lundy. Beck requested that the court issue an order providing that his "petition be dismissed as being improperly filed and not to be estopped from filing a future petition for writ when his State remedies are properly exhausted." The State did not oppose the motion to dismiss the petition.

On May 8, 1987, the district court denied Beck's motion to dismiss his section 2254 petition without comment. On the same date, the district court adopted the magistrate's report and recommendation and dismissed the petition, also without comment. The magistrate reviewed the merits of each of Beck's contentions and concluded that they were without merit. The magistrate reported that " [t]he state courts have reviewed petitioner's claims and have ruled against him." In reaching this conclusion, the magistrate relied on Beck's state habeas corpus petition and the opinion of the Arizona Court of Appeals in State v. Beck, 151 Ariz. 130, 726 P.2d 227 (1986).

We have reviewed the petition for a writ of habeas corpus filed by Beck in the Arizona Supreme Court. In this petition, Beck claimed that he had been imprisoned on a dismissed charge. The State has construed this claim as an invocation of his federal constitutional right not to be subjected to double jeopardy. Thus, this federal constitutional claim was exhausted in the Arizona courts. In the Motion to Suspend Appeal for Remand to District Court, filed in this court by Beck's court appointed counsel on October 7, 1987, it is conceded that "counsel recognizes that the claim based on the Indictment being dismissed was erroneously asserted." No other federal constitutional claim was raised in Beck's state habeas corpus petition.

We have also read Beck's briefs filed in support of his direct appeal from the judgment of conviction in the Arizona state court. Beck contended that use of his son's prior inconsistent statements for the truth of the matter asserted "violates the rule set down in State v. Cruz, 128 Ariz. 538, 627 P.2d 689 (1981), and State v. Allred, 134 Ariz. 274, 655 P.2d 1326 (1982). Neither of these cases analyzes the effect on the right to due process or equal protection of the laws that may be implicated by the admission of prior inconsistent statements for the truth of the matter asserted.

Beck also argued before the Arizona Court of Appeals that evidence of his prior act of incest with his daughter violated Rule 404(b) of the Arizona Rules of Evidence which bars the use of evidence of a prior act of sexual intercourse between consenting adults to prove a propensity to commit incest. Beck raised no federal constitutional claims in his direct appeal.

In addressing the issues raised by Beck, the Arizona Court of Appeals concluded that under Arizona law prior inconsistent statements are admissible "as substantive proof of the underlying charge [,]" State v. Beck, 726 P.2d at 229, but may be excluded if "unfair prejudice" would result. Id.

The Arizona Court of Appeals concluded that Arizona case law that permits the admission of prior bad acts "to prove an emotional propensity for sexual deviance when one is charged with an offense of sexual deviance [,]" State v. Beck, 726 P.2d at 230, applies to an act of incest with an adult daughter. Id. at 230-31. The court held further that the evidence of prior bad acts was admissible to show a common scheme or plan. Id. at 231.

There is no discussion in State v. Beck of any federal constitutional question. Thus, the magistrate's conclusion that each of Beck's claims was addressed in the Arizona courts is only partially accurate. It is quite true that the Arizona courts addressed each of Beck's claims under Arizona law. The record clearly demonstrates, however, that Beck has not presented his federal constitutional challenge to the alleged errors committed at his trial to the Arizona courts.

Before a state prisoner may seek relief from a federal district court under section 2254, he must provide the state courts with a fair opportunity to apply federal constitutional principles to the facts he relies upon to support his claim. Anderson v. Harless, 459 U.S. 4, 5 (1982).

It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made. In addition, the habeas petitioner must have 'fairly presented' to the state courts the 'substance' of his federal corpus claim.

Id. (citations omitted).

In the matter before us, Beck has not provided the State of Arizona with a fair opportunity to consider his federal constitutional claims. While it is quite true that his state claims, and his federal constitutional contentions attack the same evidentiary rulings of the court, Beck has not presented the substance of his due process and equal protection arguments to the Arizona courts. Because the petition contained unexhausted claims, the district court erred in rejecting the State's suggestion and in denying Beck's motion to dismiss his section 2254 petition without prejudice. It was also error for the district court to purport to decide the merits of the claims contained in this mixed petition.

In the supplemental opening brief, Beck's court appointed counsel has presented for the first time in this appeal, additional federal constitutional claims. The State has filed a motion to strike the new federal constitutional claims set forth in the supplemental opening brief. These claims were not exhausted in the Arizona courts nor presented to the district court in Beck's section 2254 petition. We decline to exercise our jurisdiction to consider the merits of these questions until the State has had a fair opportunity to marshal and present its evidence and its federal constitutional arguments in response to these new claims before the appropriate Arizona courts, and when exhausted, to the district court.

VII

The order dismissing the petition for writ of habeas corpus on the merits of each of the claims is reversed. This matter is remanded to the district court with directions to dismiss the petition without prejudice because it contains unexhausted claims and an exhausted claim now conceded to be invalid. The State's motion to strike the federal constitutional claims not contained in the section 2254 petition is granted.

REVERSED and REMANDED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 **

Honorable Ruggero J. Aldisert, United States Court of Appeals for the Third Circuit, sitting by designation

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