Unpublished Disposition, 875 F.2d 871 (9th Cir. 1989)

MEMORANDUM^** 

In 1985, petitioner was convicted in Arizona Superior Court of possession of marijuana and misconduct involving weapons; he was sentenced to three months in jail to be followed by four years' probation. In 1986, the Superior Court determined that Villavicencio had violated numerous conditions of his probation, and sentenced him to five years' imprisonment.

Petitioner appealed from the revocation of probation and the imposition of the five-year sentence. His counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), noting that he had searched the record and was unable to find any arguable questions for review. Petitioner was given an opportunity to file a supplemental brief, but failed to do so; the court of appeals affirmed. Petitioner then filed an unsuccessful pro se petition for review by the Arizona Supreme Court.

Villavicencio next filed this federal habeas corpus petition pursuant to 28 U.S.C. § 2254 (1982). The district court held that Villavicencio failed to exhaust his state remedies, as required by 28 U.S.C. 2254(b) & (c), and dismissed the petition. Villavicencio appeals pro se; we review de novo. Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986).

Before a state prisoner may seek habeas corpus relief in federal court, he must first give the state's highest court "fair opportunity" to consider each of his claims. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). Villavicencio raises five claims in his federal haveas petition. He has failed to give the Arizona Supreme Court fair opportunity to consider any of them. Three of his claims he now raises for the first time; these are clearly unexhausted. Rose v. Lundy, 455 U.S. 509, 515 (1982). Villavicencio presented his two other claims in a petition to the Arizona Supreme Court. Review by the Arizona Supreme court is discretionary in cases not involving a life sentence of death penalty. Arizona v. Shattuck, 140 Ariz. 582, 684 P.2d 154, 156 (1984). Raising issues for the first time in a petition for discretionary review does not satisfy Section 2254's exhaustion requirement. Castille v. Peoples, 109 S. Ct. 1056, 1060 (1989). The district court correctly dismissed the petition without prejudice for failure to exhaust state remedies. As the dismissal of the petition was without prejudice, petitioner can return to state court with all of his claims.

AFFIRMED.