Unpublished Disposition, 927 F.2d 610 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 927 F.2d 610 (9th Cir. 1987)

Lloyd E. RIDEAUX, Petitioner-Appellant,v.Charles L. RYAN, Warden, Respondent-Appellee.

No. 90-15110.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 13, 1990.* Decided Feb. 28, 1991.

Appeal from the United States District Court for the District of Arizona; No. CV-89-0463-ACM, Alfredo C. Marquez, District Judge, Presiding.

D.Ariz

AFFIRMED.

Before BRUNETTI, FERNANDEZ and THOMAS G. NELSON, Circuit Judges.


MEMORANDUM** 

BACKGROUND

Appellant Lloyd Rideaux was indicted and convicted in Arizona on seven drug related felony counts. On July 24, 1987, Rideaux was arrested; on August 7, 1987, he was arraigned; and trial commenced on December 8, 1987, approximately 137 days after his arrest.

Specifically, Rideaux alleges that trial was set to commence on October 27, 1987. However, Rideaux's appointed counsel moved for a continuance because of an alleged late disclosure of evidence and because she had not yet interviewed witnesses. The prosecutor stipulated that he had no objection to the motion. The trial court granted defense counsel's motions, over Rideaux's personal speedy trial objection. Rideaux sought and obtained interlocutory appellate review to the Arizona Court of Appeals which denied jurisdiction and dismissed the petition. After trial, but before appealing his conviction, Rideaux filed a petition for post-conviction relief in state court arguing that he was denied his right to a speedy trial under Rule 8 of the Arizona Rules of Criminal Procedure, and the United States and Arizona constitutions. The trial court's denial of Rideaux's petition for post-conviction relief was not appealed.

Thereafter, Rideaux appealed his conviction directly to the Arizona Court of Appeals. His sole ground for appeal was that the trial court violated his right to a speedy trial under Rule 8 of the Arizona Rules of Criminal Procedure. The Arizona Court of Appeals concluded that Rideaux was not denied his rights under Rule 8 of the Arizona Rules of Criminal Procedure because his attorney sought and received a two week continuance in order to better prepare for trial.

Rideaux filed a petition for habeas corpus in federal court arguing that he was denied his rights pursuant to Rule 8 of the Arizona Rules of Criminal Procedure. The federal district court dismissed the writ concluding that the issue was one of state law and not subject to federal habeas corpus review. Rideaux later filed the instant petition arguing that he was denied his Sixth Amendment right to a speedy trial. The district court concluded that Rideaux had committed a procedural default by failing to raise the Sixth Amendment claim to the state court in his direct appeal, and failing to appeal the denial of his petition for post-conviction relief. Accordingly, the district court, upon a finding that Rideaux failed to show cause and prejudice for his procedural default, dismissed the writ of habeas corpus. We affirm the district court's ruling.

DISCUSSION

The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. U.S. v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989). To the extent it is necessary to review findings of fact, the clearly erroneous standard applies. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). Our review of the record clearly indicates that Rideaux failed to present the Sixth Amendment argument to the state court. The district court concluded that such was a procedural default. We agree.

A state prisoner who contends that he is detained in violation of federal law is entitled to an independent determination of the federal claim by the federal courts. Jackson v. Cupp, 693 F.2d 867 (9th Cir. 1982). When the prisoner has not complied with reasonable state procedures and the state court has not resolved the merits of the federal claim, as a result of this default, the federal courts may, as a matter of comity, decline to reach the merits. Id. at 869. The procedural default doctrine is based on comity and is not jurisdictional; the federal courts have the power to reach the merits notwithstanding state procedural default. Id. at 869 n. 2. When a federal habeas petitioner procedurally defaults, the petitioner must show cause for his bypass of state procedures and demonstrate prejudice arising from the default. Wainwright v. Sykes, 433 U.S. 72 (1977); Allen v. Risley, 817 F.2d 68 (9th Cir. 1987); Jackson v. Cupp, 693 F.2d 867.

Rideaux, in responding to the district court's order to show "cause and prejudice" resulting from the procedural default merely stated that a Sixth Amendment claim was presented in his direct appeal. This is not indicated by Rideaux's opening brief nor the Arizona Court of Appeals' decision. Both of these documents indicate that the sole issue on appeal was whether the trial court violated Rule 8 of the Arizona Rules of Criminal Procedure. Thus, we conclude that Rideaux has failed to meet the cause and prejudice test with respect to his direct appeal.

Nor has Rideaux shown cause for his failure to appeal from the state trial court's denial of his motion for post-conviction relief. Accordingly, the district court did not err when it concluded that Rideaux procedurally defaulted.

The order of the district court dismissing the petition for writ of habeas corpus is AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth 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 9th Cir.R. 36-3