Unpublished Disposition, 927 F.2d 610 (9th Cir. 1991)

MEMORANDUM^** 

Lacy Riddell appeals pro se from the district court's denial of his petition for a writ of habeas corpus. We affirm.

* As a threshold matter, we must rule on Riddell's pending motion for the appointment of counsel to aid him in this appeal. This court has previously held "that the Sixth Amendment right to counsel does not apply in habeas corpus actions." Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (footnote omitted), cert. denied, 481 U.S. 1023 (1987). The assistance of court-appointed counsel in such actions is therefore a privilege, not a right. In deciding whether to confer that privilege, a court

must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved. These considerations are not separate and distinct from the underlying claim [s], but are inextricably enmeshed with them.

Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (citations omitted). We conclude that the legal issues are sufficiently clear and that Riddell's briefs are sufficiently articulate to allow us to rule on the merits of this appeal without furnishing Riddell the aid of appellate counsel. The motion is therefore denied.

II

* Riddell was convicted by a jury on charges of aggravated assault, sexual assault, robbery, burglary, and kidnapping. He received concurrent sentences, the longest of which was twenty-eight years, for most of his convictions and a consecutive sentence of twenty years for the burglary conviction.

On direct appeal, Riddell claimed that the scope of the jury voir dire had been insufficient, thus denying him a fair trial. He also alleged prosecutorial misconduct. Specifically, he claimed that the prosecutor had improperly exhorted the jury to "send a message to the community" and had impermissibly commented upon Riddell's trial strategy in admitting to the burglary offense but in denying the assault offenses. The Arizona Court of Appeals affirmed in both respects.

Riddell then filed a motion for reconsideration, alleging that the appellate court had failed to address a third issue: the propriety of the enhancement of his sentences on the basis of his prior convictions. The state opposed the motion on the ground that Riddell had waived the issue by introducing it for the first time in his reply brief. The court of appeals denied the motion without comment.

With the assistance of his appellate counsel, Riddell then filed a petition for review with the Arizona Supreme Court solely focused on the enhancement issue. That court denied review without comment. Sometime later, Riddell filed a petition for post-conviction relief on two entirely new issues pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. The trial court, finding that those issues could have been raised in the direct appeal, denied the Rule 32 petition. Riddell did not seek a timely review of that decision.

Instead, he filed a state habeas corpus petition with the Arizona Supreme Court. In this petition, Riddell raised the voir dire and prosecutorial misconduct arguments that he had originally argued in his direct appeal but that he had not included in his previous petition to the Arizona Supreme Court. The court therefore dismissed the petition, explaining that because of this defect Riddell's claims were now procedurally barred from further consideration in the state courts.

Turning to the federal forum, Riddell then filed his current petition for a writ of habeas corpus, in which he has again raised the voir dire and prosecutorial misconduct claims. The district court dismissed the petition, concluding that Riddell (a) had failed to exhaust his state remedies and (b) had made "no showing whatsoever" of cause or prejudice to excuse his state procedural default.

B

It is settled law that before a court may entertain a state prisoner's habeas petition, the prisoner must exhaust the available state remedies on each and every claim raised in his petition. Rose v. Lundy, 455 U.S. 509 (1982); see also 28 U.S.C. § 2254(c) (1988). Riddell has not satisfied this exhaustion requirement in the instant case because, during the state proceedings, he abandoned the two claims upon which he now seeks federal review. After the Arizona Court of Appeals affirmed his conviction and denied his voir dire and prosecutorial misconduct claims, Riddell neglected to present those claims in his petition to the Arizona Supreme Court. He did not seek to revive them until he filed his state habeas petition two years after the Arizona appellate court's original affirmance.

As the Arizona Supreme Court explained, he was procedurally barred--as a matter of state law--from relitigating those issues at that time. He is similarly barred from relitigating them now. Having had an adequate opportunity for "full and fair litigation" of his claims in the state courts and having defaulted on that opportunity, Riddell has no entitlement to federal habeas relief on those claims at this stage. See Stone v. Powell, 428 U.S. 465 (1976); cf. Castille v. Peoples, 109 S. Ct. 1056, 1060 (1989) (no exhaustion "where the claim has been presented for the first and only time in a procedural context in which its merits will not be considered").

We further agree with the district court that Riddell has failed to show "cause and prejudice" sufficient to excuse his initial abandonment of his claims and to overcome the procedural bar to reviving them. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

AFFIRMED.