Unpublished Disposition, 862 F.2d 318 (9th Cir. 1986)

MEMORANDUM^* 

Michael J. Licavoli appeals the district court's dismissal of his petition for writ of habeas corpus. We affirm.

In May, 1984, Licavoli pled guilty to three counts of theft and one count of forgery in connection with a false check writing scheme involving the accounts of recently deceased residents of Nevada. Under the terms of the plea agreement, Licavoli was sentenced to three four-year and one three-year terms of imprisonment, to be served concurrently, and was further ordered to pay $21,330 in restitution.

Licavoli did not file a direct appeal. Instead, he filed a petition for habeas corpus in the Arizona Supreme Court, claiming that he was subject to double jeopardy as a result of a parallel Nevada prosecution, and that his sentence was illegally excessive. The petition was summarily dismissed on March 21, 1986 by the Arizona Supreme Court.

Licavoli subsequently filed a petition for federal habeas corpus in federal district court. He again alleged double jeopardy and excessive sentence claims, and also included a due process claim based on a double punishment theory. The district court found that Licavoli had exhausted his state remedies with respect to the double jeopardy and excessive sentence claims, but determined that those claims had no merit. The court did not consider Licavoli's double punishment argument because he had not exhausted his state remedies with respect to that claim. Licavoli then returned to the state supreme court and filed a habeas petition on the double punishment issue; the Arizona Supreme Court summarily denied the petition on September 3, 1986.

On September 26, 1986, Licavoli filed a second federal habeas petition in district court. The State moved to dismiss the petition for failure to exhaust state remedies. A federal magistrate recommended dismissal both for failure to exhaust state remedies and on the merits of Licavoli's claim. The district court adopted the magistrate's findings without specifying a particular ground, and dismissed Licavoli's petition. This appeal followed.

The threshold issue presented is whether Licavoli exhausted his state remedies before proceeding with a federal habeas petition. The State of Arizona argues that filing a state habeas petition was improper procedure, and that the subsequent dismissals by the Arizona Supreme Court were not decisions on the merits of Licavoli's claims. Licavoli asserts that his claims were fairly presented to the Arizona Supreme Court and were subsequently dismissed on the merits, thus exhausting his state remedies. The exhaustion issue is a complex one, and to resolve it we would have to determine disputed questions regarding the practices of the Arizona Supreme Court in original habeas cases, in light of possible alternative state remedies available to Licavoli. Compare Harris v. Superior Court, 500 F.2d 1124 (9th Cir. 1974), cert. denied, 420 U.S. 973 (1975), with Sweet v. Cupp, 640 F.2d 233 (9th Cir. 1981). But here there is no need to tread this uncertain ground: the answers to the material issues in this matter are all manifest and favor the state. The interests of judicial economy permit us to address the merits without deciding the exhaustion question. Granberry v. Greer, --- U.S. ----, 107 S. Ct. 1671, 1673 (1987); see Gutierrez v. Griggs, 695 F.2d 1195 (9th Cir. 1983).

On the merits of his habeas petition, Licavoli argues that he was improperly sentenced both to imprisonment and to pay restitution contrary to state law, and that this unlawful combination constituted double punishment in violation of the double jeopardy clause. Licavoli asserts that the statute in effect at the time the crimes were committed prohibited the court from imposing both imprisonment and restitution except in cases involving probation:

If the court imposes probation it may also impose a fine as authorized by chapter 8 of this title and shall require the convicted person to make restitution to the victim of the crime in such amount and manner as the court may order, after consideration of the economic loss to the victim and economic circumstances of the convicted person.

Ariz.Rev.Stat.Ann. Sec. 13-603(C) (1978) (emphasis added). His double punishment argument must fail, however, because the sentencing court was authorized under Ariz.Rev.Stat.Ann. Sec. 13-603(D) to impose both a fine and imprisonment.

If a person is convicted of an offense and not granted a period of probation, or when probation is revoked, the following sentences may be imposed.

1. A term of imprisonment authorized by this Chapter or Chapter 7 of this title; or

2. A fine authorized by Chapter 8 of this title ... or

3. Both imprisonment and a fine....

Ariz.Rev.Stat.Ann. Sec. 13-603(D) (1978). Chapter 8, in pertinent part, provides that the court may order that all or any portion of a fine be allocated as restitution, provided the offense resulted in death, physical injury or economic loss to the victim. Ariz.Rev.Stat.Ann. Sec. 13-803(A) (1978). Read together, the two statutes authorize the sentencing court to impose both imprisonment and a fine, which can be ordered as restitution. Because the Arizona legislature provided for both punishments, the double jeopardy clause is not implicated. Whalen v. United States, 445 U.S. 684, 688 (1980).

AFFIRMED.