Unpublished Disposition, 879 F.2d 865 (9th Cir. 1984)

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U.S. Court of Appeals for the Ninth Circuit - 879 F.2d 865 (9th Cir. 1984)

Herschel CLARK, Petitioner-Appellant,v.Allan A. STAGNER, Superintendent; Attorney General ofCalifornia, Respondent-Appellee.

No. 87-1949.

United States Court of Appeals, Ninth Circuit.

Submitted*  June 9, 1989.Decided July 12, 1989.

Before FARRIS, DAVID R. THOMPSON and TROTT, Circuit Judges.


Herschel Clark, pro se, a former California state prisoner,1  appeals the district court's dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. The district court found that Clark was barred from obtaining habeas review of his claims because he had failed to exhaust state remedies. We agree with the district court, and we affirm.


On February 23, 1984 Clark was sentenced to five years in California state prison for committing a lewd and lascivious act upon a child under fourteen years of age. Clark, who was at this point represented by counsel, appealed his conviction to the Third Appellate District of the California Court of Appeal. His opening brief for this appeal raised only one issue: the appropriateness of a five year sentence for Clark given that Clark's most recent serious felony conviction had been dismissed. The California Court of Appeal's opinion considered only this issue. The court found that the prior conviction had been stricken, not dismissed,2  and that even if the conviction had been dismissed the sentence would have been appropriate because Clark's record reveals three decades of criminal involvement including convictions for attempted burglary, assault with intent to inflict great bodily injury (twice), theft, and assault with intent to commit sexual battery. Clark, pro se, then filed a petition for a hearing with the California Supreme Court. This petition set forth six issues for review but did not attempt to appeal the California Court of Appeal's judgment that the sentence levied upon Clark was appropriate. The California Supreme Court denied Clark's petition without citation or comment.

Clark then filed his petition for a writ of habeas corpus in federal district court. This petition raised substantially similar issues to those presented in Clark's petition for hearing before the California Supreme Court. The district court referred the habeas corpus petition to a United States Magistrate. The magistrate recommended that Clark's petition be dismissed. He based this recommendation on a finding that Clark had failed to exhaust state remedies. After considering Clark's objections to the magistrate's findings, the district court adopted in full the magistrate's findings and recommendation and dismissed Clark's petition. Clark timely appealed this dismissal.


We review de novo a district court's denial of a petition for a writ of habeas corpus. La Rue v. McCarthy, 833 F.2d 140, 141 (9th Cir. 1987) (citation omitted), cert. denied, 108 S. Ct. 1482 (1988).


With the exception of his claim of ineffective assistance of counsel on appeal, all of the claims raised by Clark in his petition for a hearing and his habeas petition could have been raised but were not in the California Court of Appeal. Rule 29(b) of the California Rules of Court provides that, as a matter of policy, on petition for review the California Supreme Court will not consider any issue that could have been but was not timely raised in the briefs filed in the California Court of Appeal or any issue or material fact that was omitted from or misstated in the opinion of the California Court of Appeal. The California Supreme Court's denial of Clark's petition for a hearing provides no explanation of the grounds for denial. In the context of Rule 29(b), however, it is fair to assume that the California Supreme Court considered itself procedurally barred from reviewing all issues except ineffective assistance of counsel on appeal. See Tacho v. Martinez, 862 F.2d 1376, 1380 (9th Cir. 1988); McQuown v. McCartney, 795 F.2d 807, 809 (9th Cir. 1986).

A petition for post-conviction relief to a state court which is denied on procedural grounds does not exhaust the petitioner's state remedies. Sweet v. Cupp, 640 F.2d 233, 237 (9th Cir. 1981); see also McQuown v. McCartney, 795 F.2d at 810; cf. Castille v. Peoples, 109 S. Ct. 1056, 1060 (1989) (Raising a claim in a procedural context in which a state rule bars it from being considered absent unusual circumstances does not satisfy the exhaustion requirement). All but one of Clark's claims may thus be presumed unexhausted. We must dismiss a petition for a writ of habeas corpus if it contains any unexhausted claims. McQuown v. McCartney, 795 F.2d at 810 (citing Rose v. Lundy, 455 U.S. 509, 522 (1982)). We therefore uphold the decision of the district court and dismiss Clark's habeas corpus petition for failure to exhaust state remedies.



The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)


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


Clark has completed his five year sentence in California state prison and is currently serving a prison sentence in Tennessee. Unless waived by the state parole board, an eighteen month period of parole in California applies to Clark


This finding appears to have been in error. See CR 5, Exhibit G at 5 (Pursuant to a plea bargain, petitioner's prior robbery conviction was dismissed, but the minute order of the dismissal proceedings stated erroneously that the prior conviction had been stricken.)