Unpublished Disposition, 881 F.2d 1084 (9th Cir. 1988)
Annotate this CaseMack Charles THOMAS, Petitioner-Appellant,v.Duane R. VILD, Warden, and Arizona Attorney General,Respondents-Appellees.
No. 88-15071.
United States Court of Appeals, Ninth Circuit.
Submitted* Feb. 10, 1989.Decided Aug. 8, 1989.
Before SNEED, FLETCHER and DAVID R. THOMPSON, Circuit Judges.
MEMORANDUM**
Mack Charles Thomas (Thomas), an Arizona state prisoner, appeals pro se the district court's dismissal without prejudice of his petition for a writ of habeas corpus. The district court dismissed Thomas's petition because it found that Thomas had failed to exhaust his state remedies. We affirm.
FACTS
On May 25, 1988, Thomas filed a petition for habeas relief in federal district court, under 28 U.S.C. § 2254. The petition raised five grounds for relief: (1) Thomas was denied effective assistance of counsel; (2) he did not receive a mitigation or aggravation hearing as mandated by Arizona law; (3) his sentence was aggravated without applying the mandatory reasons as required by Arizona law; (4) the use of a deputy county prosecutor as a witness constituted prosecutorial misconduct; and (5) the court violated the interstate agreement on detainers and did not comply with Ariz.R.Crim.P. 8.3(a) and (b).
In response to question 9(a) of the petition, Thomas indicated that he appealed his original conviction to the Arizona Court of Appeals, which affirmed his conviction. He also indicated that no court appointed attorney would file a petition for certiorari in the Arizona Supreme Court. In response to question 11(a), he indicated that he filed a petition under Ariz.R.Crim.P. 32 for post-conviction relief in Pima County Superior Court, which affirmed his conviction without an evidentiary hearing. On the next page of the petition, Thomas indicated, in response to question 11(d), that he appealed to the highest state court on his first, second, and third petitions.
Because of this apparent contradiction, the district court could not determine whether Thomas's habeas petition demonstrated exhaustion or not. The district court therefore ordered that Thomas file an amended petition clearly showing whether he took a direct appeal, a Rule 32 petition, or both to the Arizona Supreme Court, and whether such appeal included all grounds for relief he presents in his federal habeas petition.
Thomas's amended petition states that his direct appeal and Rule 32 petition were consolidated in the Arizona Court of Appeals, a procedure provided for in Ariz.R.Crim.P. 31.4(b). According to Thomas, the Court of Appeals denied both appeals, and his appointed counsel "failed and refused" to file an appeal in the Arizona Supreme Court. C.R. 4. Thomas asserts in the amended petition that he has been prejudiced by the actions of his appointed counsel because he had no further avenue of relief open in Arizona courts.
Our review of the record, as supplemented by Appellees, demonstrates that the procedural history of Thomas's claims is somewhat different from what Thomas asserts. On October 20, 1987, the Arizona Court of Appeals affirmed Thomas's convictions and sentences on direct appeal. On December 9, 1987, the Court of Appeals denied Thomas's motion for reconsideration. Thomas was represented by counsel in these proceedings. No appeal was taken and on January 7, 1988, the Arizona Court of Appeals issued its mandate, stating that the time for appeal to the Arizona Supreme Court had expired. In the meantime, on January 6, 1988, Thomas filed a pro se Rule 32 petition in Pima County Superior Court. On February 1, 1988, the Superior Court summarily denied Thomas's Rule 32 petition. Thomas took no further action to bring his Rule 32 petition before Arizona's appellate courts. The Rule 32 petition was substantially identical to Thomas's habeas petition.
On June 27, 1988, the district court dismissed Thomas's amended petition without prejudice, on the ground that Thomas had not exhausted his state remedies because he did not take a Rule 32 petition to the Arizona Supreme Court. The district court also noted that Thomas should include in his petition a statement regarding the reasons he failed to take an appeal of the Court of Appeals decision affirming his conviction. Thomas timely appeals. The district court granted a certificate of probable cause.
ANALYSIS
This court reviews de novo a district court's dismissal of a habeas corpus petition. Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987), cert. denied, 109 S. Ct. 1327 (1989)
A federal court ordinarily may not consider the merits of a habeas corpus petition unless the petitioner has exhausted all available state remedies as to every claim. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 510 (1982). A petitioner may satisfy the exhaustion requirement in either of two ways: (1) by presenting the highest state court with an opportunity to rule on the merits, or (2) by demonstrating that at the time he filed his habeas petition in federal court, he had no state remedies available and had not deliberately bypassed them. McQuown v. McCartney, 795 F.2d 807, 809 (9th Cir. 1986).
Prior to obtaining review of his Rule 32 petition in the Arizona Court of Appeals, Thomas was required to file a motion for rehearing in Superior Court. Ariz.R.Crim.P. 32.9(a), (c); State v. Gause, 112 Ariz. 296, 541 P.2d 396, 397 (1975). This motion must be filed within 10 days after the Superior Court's ruling. Thomas failed to file this motion, and is therefore barred from pursuing his claims in the Arizona appellate courts.1
" [W]hen a petitioner at one time could have raised his constitutional claim in state court but did not and is now barred from doing so by a state rule of procedure, he has procedurally defaulted on his claim." Tacho v. Martinez, 862 F.2d 1376, 1378 (9th Cir. 1988). However, "federal habeas corpus review will not be barred if petitioner can demonstrate both cause for his noncompliance with the state procedural rule and actual prejudice resulting from the default." Id. at 1380. Thomas alleges as grounds for his noncompliance his counsel's failure to file a petition for review in the Arizona Supreme Court. Thomas has not, however, presented any explanation for his failure to seek review of his Rule 32 petition, on which he was never represented by counsel. The "cause and prejudice" standard applies to a pro se petitioner's procedural default as well as to his counsel's. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908 (9th Cir. 1986). Because Thomas has not asserted cause for his default, the district court did not err in dismissing without prejudice Thomas's habeas petition.2
AFFIRMED.
The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a); Circuit Rule 34-4
This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Circuit Rule 36-3
Appellees acknowledge that there are procedures available to Thomas by which he can still seek review by the Arizona Supreme Court of his direct appeal and his Rule 32 petition. See Respondent-Appellees' Answering Brief at 4 (direct review: motion to recall mandate); 5 (Rule 32: request for permission to permit late filing of motion for rehearing)
We cannot ascertain at this point in the proceedings whether Thomas will be required to exhaust his claims of cause and prejudice in state court before presenting them in federal court. See Murray v. Carrier, 477 U.S. 478, 488-89 (1986) (allegation of cause based on ineffective assistance of counsel on appeal resulting in procedural default must first be presented to state court, but noting that other allegations of cause may be presented directly to federal court if they do not require resolution of an independent and unexhausted constitutional claim)
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