Unpublished Disposition, 875 F.2d 319 (9th Cir. 1989)

MEMORANDUM^* 

Shaw appeals the denial of his petition for a writ of habeas corpus. His sole claim on appeal is that the trial court violated his due process rights by dismissing his indictment without prejudice when the prosecutor was unable to proceed due to the unexpected absence of a key witness. Shaw claims he was entitled to a dismissal with prejudice. Shaw did not raise this due process issue in state court. Because he has no currently available state court remedy and has failed to establish cause for his default and resulting prejudice, we affirm.

This court will not consider Shaw's due process claim unless he has exhausted state remedies with regard to that claim. Sweet v. Cupp, 640 F.2d 233, 235 (9th Cir. 1981). " [A] petitioner can satisfy the exhaustion requirement in either of two ways: (1) by presenting the state supreme court with a fair opportunity to rule on the merits; or (2) by showing that no state remedies remain available." Kellotat v. Cupp, 719 F.2d 1027, 1029 (9th Cir. 1983).

Shaw did not present his due process claim to the Hawaii Supreme Court. The "Points on Appeal" section of his Amended Opening Brief claimed violation of his constitutional right to speedy trial and his right to speedy trial under Rule 48(b) of the Hawaii Rules of Penal Procedure, but made no mention of due process. In Hawaii, issues not designated in the points on appeal section of the opening brief "will be disregarded" unless they constitute "plain error." Hawaii R.App.P. 28(b) (4).

In order to have "fairly presented" his claims to the state court, the habeas petitioner must have provided the state court with

a "fair opportunity" to apply controlling legal principles to the facts bearing upon his constitutional claim. 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.... [T]he habeas petitioner must have "fairly presented" to the state courts the "substance" of his federal habeas corpus claim. Anderson v. Harless, 459 U.S. 4, 6 (1982) (citations omitted). Under this standard, Shaw did not fairly present his due process claim to the state court.

The next question is whether Shaw has a currently available state remedy. In determining that he does not we follow two Ninth Circuit cases which have held that Hawaii's Rule of Penal Procedure 40 (Post-conviction Proceeding) forecloses review of claims not raised in previous state proceedings. Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir. 1986) (failure to raise Sixth Amendment claim on direct appeal to Hawaii Supreme Court barred state collateral relief under Rule 40); Matias v. Oshiro, 683 F.2d 318, 319-21 (9th Cir. 1982) (Rule 40 barred review of new ineffectiveness of counsel claims which had not been raised at previous state post-conviction proceeding). Based on these precedents we conclude that Shaw's state remedies are exhausted.

If, as here, state remedies are foreclosed because of a state procedural default, federal habeas review is barred absent a showing of cause and prejudice. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Shaw is unable to make such a showing. He has offered no reason for his failure to raise the due process claim in state court. " [T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Murray v. Carrier, 477 U.S. 478, 486-87 (1986). Because Shaw has not shown cause for his procedural default, we need not reach the question of prejudice.

AFFIRMED.