Unpublished Disposition, 878 F.2d 1439 (9th Cir. 1989)

MEMORANDUM

Stuart appeals from the district court's dismissal of a petition for writ of habeas corpus. Stuart is presently in prison serving two sentences, one for attempted murder and assault, which he is challenging in this action, and one for failure to appear.

Stuart challenges his conviction on five grounds: (1) the trial court should have instructed the jury that his exercise of the right to remain silent could not be used against him; (2) the trial court should not have admitted evidence of Stuart's prior bad acts; (3) the trial court should have merged Stuart's convictions for attempted murder and assault; (4) the trial court should not have imposed a gun-enhanced minimum sentence; and (5) the trial court should have suppressed certain of Stuart's statements made after an attorney was requested. The district court found that Stuart had procedurally defaulted on claim no. 1, and he failed to make a proper showing of cause and prejudice to overcome his default. Therefore, the judge dismissed both the claim and the entire action.

The district court exercised jurisdiction pursuant to 28 U.S.C. § 2254(a). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. §§ 1291, 2253. We affirm in part and reverse and remand in part for further consideration.

We review a district court's refusal to certify a question of state law for an abuse of discretion. See Lehman Brothers v. Schein, 416 U.S. 386, 390-91 (1974). We review a dismissal of a petition for writ of habeas corpus independently. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985).

A procedural default only occurs where a state has a procedural rule which the petitioner has violated and the state's highest court has therefore refused to entertain the claim on the merits. County Court of Ulster v. Allen, 442 U.S. 140, 150-54 (1979). The Oregon Supreme Court will only consider claims properly raised in the court of appeals. Tarwater v. Cupp, 304 Or. 639, 644 n. 5, 748 P.2d 125 (1988). Stuart did not present his first claim to the court of appeals. When Stuart submitted it to the supreme court, the court refused to consider it. Therefore, Stuart has been denied a hearing based upon a violation of a state procedural rule. Furthermore, Oregon law precludes a post-conviction petition on a ground which "could ... reasonably have been asserted in the direct appellate review proceeding." Or.Rev.Stat. Sec. 138.550(2). These two factors effectively preclude Stuart from any state remedies.

There is nothing in the record that indicates that the district court abused its discretion in denying Stuart's request to certify to the Oregon Supreme Court the question of whether he was procedurally barred from state remedies. " [W]here ... a statute is susceptible to a fair construction that obviates the need to have the state courts render the saving construction, there is no need for federal courts to abstain." Planned Parenthood Association v. Ashcroft, 462 U.S. 476, 493-94 n. 21 (1983).

Because Stuart once had a state remedy which he did not raise and is now barred from asserting that claim by a state procedural rule, he will be likewise barred from asserting the claim in federal court, absent a showing of cause and prejudice. Reed v. Ross, 468 U.S. 1, 12-15 (1984); Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 906-08 (9th Cir. 1986). Stuart attempted to do so and contended that he did not assert claim no. 1 in the action at the Oregon appeals court because it was contained in a portion of the transcript which had not been provided to him at the time he filed his opening brief. However, prior to filing his opening brief, Stuart moved to supplement the record with the transcript of closing arguments. This motion tolled the briefins schedule pending the court of appeals' disposition. See Or.R.App.. P. 9.30. Thus, Stuart made a tactical decision to file his opening brief before it was due. A tactical decision of the petitioner does not provide cause. Reed v. Ross, 468 U.S. 1, 13-14 (1984); see also Hughes, 800 F.2d at 908-09 (tactical decision by illiterate pro se petitioner does not satisfy cause). Therefore, Stuart is procedurally barred from asserting claim no. 1 in a federal habeas corpus action.

To preserve comity, a district court should dismiss an entire habeas corpus petition when one of the claims asserted has not been exhausted. Rose v. Lundy, 455 U.S. 509, 510 (1982). However, this has not been applied to petitions containing one claim that has been procedurally defaulted. Cf. Kimmelman v. Morrison, 477 U.S. 365, 390-91 (1986) (assertion of sixth amendment claim not dismissed when joined with a procedurally defaulted fourth amendment claim). Furthermore, comity would not be served by dismissing such a mixed petition, since the state courts would not examine a procedurally defaulted claim, as they would an unexhausted claim.

Therefore, the district court should not have dismissed the entire petition but only the first claim for relief. Since no determination of the merits of the remaining four claims has been conducted, nor are they addressed in the briefs, they should be remanded to the district court. Id.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.