Unpublished Disposition, 919 F.2d 145 (9th Cir. 1990)

MEMORANDUM^** 

Donald Gordon Sager, an Oregon state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 petition without prejudice for failure to exhaust state remedies. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we affirm.

A state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254; Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam); Lindquist v. Gardner, 770 F.2d 876, 877 (9th Cir. 1985). A petitioner satisfies the exhaustion requirement by fairly presenting all claims to the highest state court with jurisdiction to consider the claims. Picard v. Connor, 404 U.S. 270, 276) (1971).

Generally, when a state allows review of a constitutional violation either on direct appeal or by collateral attack, a prisoner need exhaust only one avenue of relief before bringing a habeas petition in federal court. Turner v. Compoy, 827 F.2d 526, 529 (9th Cir. 1987), cert. denied, 489 U.S. 1059 (1989). Nevertheless, when a state "mandate [s] a particular procedure to be used to the exclusion of other avenues of seeking relief ..., presenting an issue to the state's highest court via a statutorily deviating path will not exhaust state remedies." Id. (holding that although a statutorily-mandated collateral procedure would preclude exhaustion by direct appeal, a mere preference by the state court that claims of ineffective assistance of counsel be brought in a habeas petition does not preclude exhaustion by direct appeal).

For violations of a defendant's rights that require a further evidentiary hearing, Oregon provides a statutory remedy in its trial courts under the Oregon Post-Conviction Hearing Act, Or.Rev.Stat. Secs. 138.510-.680. See Kellotat v. Cupp, 719 F.2d 1027, 1030 (9th Cir. 1983). Claims properly asserted under the Post-Conviction Act include claims of ineffective assistance of counsel. Id. Thus, a defendant's claim that he was denied effective assistance of counsel is an issue properly determined upon post-conviction review rather than upon direct appeal. Id.; accord State v. McKarge, 78 Or.App. 667, 668, 717 P.2d 656, 656 (1986) (per curiam).

Here, Sager was convicted of armed robbery in state court. He appealed his conviction to the Oregon Court of Appeals, raising among other issues a claim of ineffective assistance of trial counsel. The Court of Appeals affirmed his conviction without comment, and the Oregon Supreme Court denied without comment Sager's petition for review. Sager therefore argues that the Supreme Court had a fair opportunity to rule on the merits of his claim and that its denial without comment of his petition for review constitutes a denial on the merits.

Although we generally presume that a state court's denial of review without citation or opinion is a denial on the merits, we have held that summary denial does not operate as a denial on the merits when it is clear that relief is denied on procedural grounds. See Sweet v. Cupp, 640 F.2d 233, 238 (9th Cir. 1981). Here, Sager raised the issue of ineffective assistance to the Oregon Supreme Court, which "exercises its discretionary jurisdiction only to resolve conflicts in Oregon precedent or to decide questions of public import." Kellotat, 719 F.2d at 1031 (citing 1000 Friends of Oregon v. Board of County Comm'rs, 284 Or. 41, 584 P.2d 1371, 1372-73 (1978)). That court "has made clear that its denials of review are not to be viewed as approval of a decision on the merits." Id. Accordingly, we have held that because Oregon statutes provide a comprehensive post-conviction collateral remedy for claims such as ineffective assistance of counsel, the Oregon Supreme Court's summary denial of a petition for review raising such claims does not operate as a denial on the merits. Id. Thus, Sager has not exhausted his state remedies under Oregon's Post-Conviction Hearing Act on his claim of ineffective assistance of counsel. Sager has a petition pending in state court under Oregon's Post-Conviction Hearing Act which he filed with the assistance of court-appointed counsel, and thus he is in the process of exhausting his state remedies.

The district court dismissed the entire petition for failure to exhaust state remedies because Sager failed to exhaust his claim of ineffective assistance of counsel. In his habeas petition, however, Sager also alleges that he was denied due process because of prosecutorial misconduct and because the evidence was insufficient to support his conviction. Sager claims that he exhausted these claims and argues that the district court should have allowed him to file an amended petition raising only the exhausted claims. Nevertheless, the district court properly dismissed the entire petition because it contained an unexhausted claim. See Rose v. Lundy, 455 U.S. 509, 510 (1982). Sager may either resubmit his habeas petition with any exhausted claims or exhaust his unexhausted claim in state court before filing a new petition. See Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988).

AFFIRMED.