Unpublished Disposition, 927 F.2d 609 (9th Cir. 1991)

MEMORANDUM^** 

Adell Henderson, an Arizona state prisoner, appeals pro se the district court's denial of his petition for habeas corpus relief. Henderson was convicted of first-degree rape and first-degree burglary, and sentenced to concurrent terms of imprisonment of 90-95 years for the rape and 14-15 years for the burglary. After his conviction, he filed a direct appeal to the Arizona Court of Appeals, which affirmed his convictions and sentences. State v. Henderson, 116 Ariz. 360, 569 P.2d 256 (1977). Henderson later filed several petitions for post-conviction relief in the state system, asserting that he was denied his Sixth Amendment right to effective counsel and that the use of invalid prior convictions at trial require a reversal of his conviction. The trial court denied his last petition and subsequent motion for rehearing. Henderson then petitioned for review. In a memorandum decision, the Arizona Court of Appeals refused to review the petition because the motion for rehearing had not been filed within the time limits set forth in Rule 32.9(a) of the Arizona Rules of Criminal Procedure.¹  The Supreme Court of Arizona then summarily denied his petition for review.

Henderson filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed his petition with prejudice on the ground that he failed to show cause for his procedural default in state court. We affirm.

The parties agree that Henderson has exhausted his state court remedies. See Respondent-Appellee's Answering Brief at 6. However, the Arizona courts dismissed his petition because it was procedurally defective. It is well established that, absent a showing of "cause and prejudice," federal courts may not entertain a state prisoner's habeas petition when his claims have been forfeited in state court by procedural default. See Reed v. Ross, 468 U.S. 1, 11, 104 S. Ct. 2901, 2908, 82 L. Ed. 2d 1, 12 (1984); Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); Tacho v. Martinez, 862 F.2d 1376, 1378 (9th Cir. 1988). The Arizona Court of Appeals' dismissal of Henderson's petition for failure to comply with Rule 32.9(a), and the Arizona Supreme Court's subsequent summary denial of review, plainly show that petitioner claim was dismissed on grounds of procedural default.²  Therefore, the only question we must now address is whether Henderson can show "cause" for noncompliance with the state rule and "actual prejudice resulting from the alleged constitutional violation." Wainwright v. Sykes, 433 U.S. 72, 84, 106 S. Ct. 2497, 2505 (1977); Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639 (1986)

Henderson contends that he has shown "cause" because his procedural default stemmed from constitutionally ineffective assistance of counsel. However, petitioner was apparently not represented by counsel at the time of the procedural default. Ineffectiveness of counsel was the subject of the most recent state court petition not the cause of the procedural default with respect to that petition. The district court afforded petitioner a full opportunity to explain the "cause" for his noncompliance, but he merely referred to his underlying allegation that counsel had been incompetent in his handling of an earlier petition. Accordingly, we conclude that the petitioner has failed to demonstrate cause for the state procedural default. Since Henderson has failed to show cause, we need not determine whether he has suffered actual prejudice. We therefore dismiss Henderson's habeas petition on the ground that his claims were forfeited in state court for procedural default. The decision of the district court is

AFFIRMED.