Unpublished Disposition, 867 F.2d 613 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 613 (9th Cir. 1989)

Simon SAWYER, Petitioner-Appellant,v.George DEEDS, Warden, et al., Respondents-Appellees.

No. 86-15028.

United States Court of Appeals, Ninth Circuit.

Submitted*  Jan. 26, 1989.Decided Jan. 30, 1989.

Before HUG, SCHROEDER and LEAVY, Circuit Judges.


MEMORANDUM** 

Simon Sawyer appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. The district court dismissed Sawyer's petition without prejudice for failure to exhaust state remedies.1  Sawyer argues his only available state remedy is habeas corpus, but that it is blocked by Nev.Rev.Stat. 12.015. We affirm.

A state prisoner must exhaust all available state court remedies before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b); Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curium). The petitioner can satisfy the exhaustion requirement by giving the highest state court a fair opportunity to consider his claim before he presents it to the federal habeas court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). This may be accomplished either by direct appeal or by post-conviction proceedings. See 28 U.S.C. § 2254(b).

The exhaustion requirement may also be satisfied by the petitioner's procedural default. Thus, if a petitioner could at one time have raised the claim in state court but did not and is now barred from doing so by a state rule of procedure, that claim is exhausted because there is no available state remedy by which he can raise his claim. Fay v. Noia, 372 U.S. 391, 399 (1963). For reasons for comity, however, a petitioner cannot raise his procedurally barred claim in federal court unless he can demonstrate cause for his default and actual prejudice from the alleged constitutional violation. Reed v. Ross, 468 U.S. 1, 12-16 (1984); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 906-08 (9th Cir. 1986). A petitioner has failed to exhaust state remedies if state remedies are presently available. 28 U.S.C. § 2254(b); Fay, 372 U.S. at 435 (1963).

Sawyer has failed to exhaust available state remedies. He was convicted of first degree murder in May 1984 after entering a plea of guilty. Sawyer does not allege that he appealed his conviction or collaterally attacked it in state court; he claims that the sentencing court and his counsel failed to advise him of his right to appeal. Even though he is foreclosed under Nevada law from making a direct appeal to the Nevada Supreme Court on the claim raised in his federal habeas petition,2  Sawyer can have his claim reviewed in state court pursuant to a petition for post-conviction relief under Nev.Rev.Stat. Secs. 177.315-385 or a habeas corpus petition under Nev.Rev.Stat. Secs. 34.720-800. See Marshall v. Warden, 83 Nev. 442, 445, 434 P.2d 437, 439-40 (1967).

Although its true that more than one year has passed since Sawyer's conviction, he may file a petition for post-conviction relief upon a showing of good cause. See Nev.Rev.Stat. Sec. 177.315(3);3  Johnstone v. Wolff, 582 F. Supp. 455, 458 (D. Nev. 1984) ("it is entirely possible that the Nevada State Courts would consider the merits of the [petitioner's late] unexhausted claims if a showing of good cause was made"); Brimage v. Warden, 94 Nev. 520, ----, 582 P.2d 375, 376 (1978) (per curiam) (petitioner established prima facie showing of good cause for delay where he claimed that he had been denied effective assistance of counsel and his guilty plea was involuntary). Thus, if Sawyer's allegations of making an involuntary guilty plea and lacking notification of the right to appeal are true, they may establish good cause for his delay in requesting post-conviction relief.4 

Sawyer may also pursue habeas corpus relief in the Nevada state courts. However, unless he can show good cause, he must precede the filing of a habeas petition with a petition for post-conviction relief.5  See Nev.Rev.Stat. Sec. 34.725. Filing a petition more than five years after a conviction creates a presumption of prejudice to the state, but this presumption is rebuttable. Nev.Rev.Stat. Sec. 34.800(2).

Sawyer contends that the habeas remedy is rendered unavailable to him by operation of Nev.Rev.Stat. Sec. 12.015 (1986),6  which requires an indigent litigant to have an attorney certify that his cause of action is meritorious.7  Sawyer's contention lacks merit.8 

In Barnes v. Eighth Judicial Dist. Court, 748 P.2d 483, 487-88 (Nev.1987), the Nevada Supreme Court ruled that Nev.Rev.Stat. Sec. 12.015 violated the Nevada and United States Constitutions insofar as it required indigent persons to obtain, as a condition to obtaining a waiver of filing fees, certification from an attorney that their actions had merit. Barnes also noted that Nev.Rev.Stat. Sec. 19.013(4) prohibited district court clerks from charging fees to file habeas petitions. Moreover, indigent access is provided for in the post-conviction statutes discussed above (see supra notes 3 & 4). Because Sawyer is free to pursue exhaustion of his state remedies, the district court correctly dismissed Sawyer's habeas corpus petition. See 28 U.S.C. § 2254(b); Duckworth, 454 U.S. at 3.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

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

 1

The appellees contend the court's dismissal without prejudice is not an appealable order. This contention lacks merit. "That the dismissal was without prejudice to filing another ... [petition] does not make the cause unappealable, for denial of relief and dismissal of the case ended ... [consideration of the petition] as far as the District Court was concerned." United States v. Wallace & Tiernan Co., 336 U.S. 793, 794-95 n. 1 (1949); see Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984) (dismissal of civil action without prejudice for failure to prosecute is an appealable order); see also Scanlon v. Atascadero State Hospital, 677 F.2d 1271, 1272 (9th Cir. 1982) (dismissal of complaint is appealable if no amendment could cure defect)

 2

Sawyer claimed in his habeas petition that he unknowingly and involuntarily pleaded guilty. Under Nevada law, a defendant may not challenge the validity of his guilty plea on direct appeal. He may challenge it only by bringing a motion to withdraw his plea or initiating post-conviction proceedings under Nev.Rev.Stat. Sec. 34.360 or Sec. 177.315. Bryant v. State, 102 Nev. 268, ----, 721 P.2d 364, 367-69 (1986)

 3

Nev.Rev.Stat. Sec. 177.315(3) provides:

Unless there is good cause shown for delay, a proceeding under Nev.Rev.Stat. 177.315 to 177.385, inclusive, must be filed within 1 year after entry of judgment of conviction or, if any appeal has been taken from such judgment, within 1 year after the final decision upon or pursuant to the appeal.

 4

In addition, the procedure in Nevada for post-conviction relief allows petitioners who are unable to pay costs to file for relief. Nev.Rev.Stat. Sec. 177.345(1) provides that the petition may allege that the petitioner is unable to employ counsel, and if the court is satisfied that the allegation is true it will appoint counsel within 10 days of the filing of the petition. Furthermore, if the petitioner is unable to pay the costs connected to the proceedings, either the state public defender or the state contingency fund will pay such costs. Nev.Rev.Stat. Sec. 177.345(2)

 5

The provisions for habeas relief under Nevada law also provide for instances in which the petitioner is unable to pay for counsel or the costs of the proceedings. Nev.Rev.Stat. Sec. 34.750(1), (2)

 6

Nev.Rev.Stat. Sec. 12.015 states, in relevant part:

"Any person who desires to prosecute or defend a civil action may file an affidavit with the court setting forth with particularity facts concerning his income, property and other resources which establish that he is unable to prosecute or defend such action because he is unable to pay the cost of so doing. The affidavit must be supported by the certificate of an attorney that such person has a meritorious cause of action or defense."

 7

Sawyer further argues that trial counsel's failure to advise him of his right to appeal violated his constitutional rights. He also repeats the arguments made before the district court in his petition for habeas corpus. This court need not address the merits of these arguments because Sawyer has not satisfied the requirement of exhausting state remedies

 8

It does not appear that Sawyer himself was restricted in his access to the Nevada courts by operation of Nev.Rev.Stat. Sec. 12.015. Sawyer attached to his brief a letter regarding this statute addressed to another person (Appellant's Opening Brief, Appendix). Therefore, Sawyer's assertion of this argument appears to be speculative and may raise standing or ripeness questions