Unpublished Disposition, 869 F.2d 1499 (9th Cir. 1989)

MEMORANDUM^** 

Santiago Velez appeals the district court's dismissal without prejudice of his petition under 28 U.S.C. § 2254 for writ of habeas corpus. Velez was convicted of first-degree sexual assault and attempted first-degree sexual assault following a jury trial in the Superior Court in Anchorage, Alaska, in November 1986. Judge Karl Johnstone presided over the trial. Velez appealed to the Alaska Court of Appeals, although it is unclear from the record exactly what issues Velez raised on appeal.

While the appeal was still pending, Velez filed a petition for writ of habeas corpus in federal district court. Velez claimed that his right to due process under the federal constitution was violated because Judge Johnstone had not complied with the statutory requirements for retention as a Superior Court judge in Alaska.¹  The federal magistrate to whom the case was assigned issued an order to show cause why Velez's petition should not be dismissed for failure to exhaust his state court remedies in light of the appeal pending before the court of appeals. In response, Velez argued that he should not be required to exhaust his state appeal remedies because his due process claim is similar to a double jeopardy claim for which an exception to the exhaustion rule has been created. Hartley v. Neely, 701 F.2d 780, 781 (9th Cir. 1983).

The magistrate recommended that Velez's petition be denied, and the district court accepted the magistrate's recommendation, dismissing the petition without prejudice. We affirm because Velez's petition does not raise a federal claim.

STANDARD OF REVIEW

The decision whether to grant or deny a petition for writ of habeas corpus is reviewed de novo. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985).

ANALYSIS

On appeal, Velez contends that he should not be required to exhaust his state remedies because an adverse determination has been made by the Alaska Supreme Court in Division of Elections v. Johnstone, 669 P.2d 537 (Alaska 1983), cert. denied, 465 U.S. 1092 (1984), on the propriety of Judge Johnstone's retention. He also argues that as in the case of a double jeopardy claim, he should not be required to exhaust his state appeal remedies because his fundamental due process right to be tried before a qualified judge would be seriously undermined if his allegedly unlawful incarceration is allowed to continue during a lengthy period of state appeal.

The government contends the dismissal should be affirmed because Velez's petition does not raise any cognizable issues of federal law. The government argues in the alternative that the petition was properly dismissed for failure to exhaust the appeal process since Velez's due process claim does not justify an exception to the exhaustion requirement. Because we agree that the petition fails to state a federal claim and was therefore properly dismissed, we do not reach the exhaustion issue.

A state prisoner asking a federal court to issue a writ of habeas corpus must demonstrate that he has suffered harm in violation of federal law binding on the state courts. Engle v. Isaac, 456 U.S. 107, 119 (1982). A writ of habeas corpus is:

unavailable for alleged error in the interpretation or application of state law.... [I]t is not available when a petitioner merely alleges that something in the state proceedings was contrary to general notions of fairness or violated some federal procedural right unless the Constitution or other federal law specifically protects against the alleged unfairness or guarantees the procedural right in state courts.

Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citation omitted), cert. denied, 478 U.S. 1021 (1986).

Review of Velez's petition and brief on appeal indicates that his complaint is concerned purely with matters of Alaska law. There are two variations of Velez's due process claim.²  First, Velez contends in his petition that the fact that he was tried by a judge who had not met the state statutory requirements of retention violated his guarantee of due process. Second, he appears to allege in his brief that the Alaska Supreme Court's interpretation and application of the Alaska Constitution and relevant statutory provisions in Division of Elections was arbitrary and capricious thereby also constituting a deprivation of due process.

As to the latter argument, the Supreme Court has rejected the contention that a state court's erroneous construction of state law may rise to the level of a due process violation.

Even if it be true, as the plaintiff in error says, that the Supreme Court of Colorado departed from earlier and well-established precedents to meet the exigencies of this case, whatever might be thought of the justice or wisdom of such a step, the Constitution of the United States is not infringed. It is unnecessary to lay down an absolute rule beyond the possibility of exception. Exceptions have been held to exist. But in general the decision of a court upon a question of law, however wrong and however contrary to previous decisions, is not an infraction of the Fourteenth Amendment merely because it is wrong or because earlier decisions are reversed.

Patterson v. Colorado, 205 U.S. 454, 461 (1907); see also Gryger v. Burke, 334 U.S. 728, 731 (1948) ("We cannot treat a mere error of state law ... as a denial of due process; otherwise, every erroneous decision by a state court on state law would come here as a federal constitutional question."); Jones v. Thieret, 846 F.2d 457, 460 (7th Cir. 1988) (a state may violate its own law without violating the federal constitution).

Therefore, even if Velez's contention that the Alaska Supreme Court irrationally misconstrued or misapplied Alaska constitutional or statutory law in Division of Elections is correct, Velez has not stated a federal claim.

The first variation of Velez's due process claim also fails to present a federal claim. He cites no authority for the proposition that the Constitution or some other federal law precluded the Alaska Supreme Court from permitting Judge Johnstone from running in the 1982 election. Alaska state law and not federal law dictates the procedures and conditions to be followed in electing Alaska's state judges. Since the rules and procedures for electing Alaska's judges emanate from state law, interpretation and application of those rules and procedures does not involve a federal question. And, as pointed out above, erroneous judicial interpretation of the applicable rules and procedures does not constitute a due process violation.

CONCLUSION

The district court's dismissal of Velez's petition is AFFIRMED because the petition fails to raise a federal claim.