Unpublished Disposition, 933 F.2d 1013 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1013 (9th Cir. 1991)

Sebastian Marcel BUTLER, Petitioner-Appellant,v.William GASPAR, Deputy Warden, Bob Corbin, Arizona AttorneyGeneral, Respondents-Appellees.

No. 90-15271.

United States Court of Appeals, Ninth Circuit.

Submitted May 13, 1991.* Decided May 28, 1991.

Before FARRIS, BOOCHEVER and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Sebastian Marcel Butler appeals pro se the denial of his petition for a writ of habeas corpus. We AFFIRM.

Butler was convicted of attempted trafficking in stolen property for the sale of stereo equipment to undercover police. Under Arizona law, to convict for attempted trafficking the state need not prove that the merchandise was stolen and produce the victim, it need only show that the defendant thought the merchandise was stolen, or knew it might have been. At trial, although there was no proof that the particular items were stolen, the undercover police testified that, by word and/or gesture, Butler communicated that he was dealing in "hot" merchandise.

He appealed the conviction on the grounds that (1) the state was required to prove that the merchandise was stolen; (2) the court failed to instruct that the jury must find that the property belonged to someone other than him; (3) the newly-discovered evidence, in the form of testimony from a Thong Stakhasone who would claim he sold the stereo equipment to Butler, should have been admitted in the state petitions for post-conviction relief. His conviction was affirmed.1 

In his petition for federal habeas corpus relief, Butler raised five grounds, three of which he ultimately voluntarily dismissed. His petition was denied. He appeals. Of the remaining two issues passed upon by the district court, one has been abandoned on appeal. Thus, the only claim before us is whether the state was compelled to prove that the merchandise Butler sold to the police was actually stolen.

We first address the state's contention that Butler's sole remaining claim is not cognizable in a federal habeas proceeding. The federal magistrate read this claim to raise only a question of interpretation of state law, a matter not cognizable in a federal habeas corpus proceeding. See Magistrate's Report and Recommendation, 5. Although the Arizona Court of Appeals reviewed this claim as a purely state statutory one, we find it difficult to deny that Butler fairly presented a federal constitutional claim, although he did not cite the constitution "book and verse." See Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958).

Certainly, the thrust of Butler's argument there was that state law requires it "be proven by some competent evidence that the property belonged to someone other than the appellant, and that he had no right to infringe [that ownership interest]." Nonetheless, citing State v. Mohr, 150 Ariz. 564, 724 P.2d 1233 (Ct.App.1986), he also claimed that, because the state was not obliged to prove beyond a reasonable doubt that the property belonged to another person, it effectively transferred to him the burden of proving an element of the crime.2 

While a citation to In re Winship, 397 U.S. 358 (1970), or the due process clause, would have been even clearer, Butler's claim that he was "deprived of a fair trial because the burden of persuasion was effectively transferred to him," his citation to Mohr, and its discussion of impermissible burden-shifting in connection with the same statute seems sufficient to have put the state court on notice that the operation of a state statute was being challenged on federal constitutional grounds. See Anderson v. Harless, 459 U.S. 4 (1982); Picard v. Connor, 404 U.S. 270 (1971).

Having decided that Butler's claim is cognizable in a federal habeas proceeding, we must determine whether his failure to bring this claim forward in a petition to the Arizona Supreme Court prevents him from raising it here.

While Butler presented his claim to the Arizona Court of Appeals, he did not file a petition for review of that claim with the Arizona Supreme Court. It is clear that the Arizona Supreme Court, whose jurisdiction over such an appeal would have been discretionary, could have heard it.3  It is equally clear that "when a petitioner at one time could have raised his constitutional claim in the 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) (citing Murray v. Carrier, 477 U.S. 478, 485 (1986); Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977)).

In this case, Butler could have raised his constitutional claim in the state supreme court, but did not. Furthermore, after having failed originally to bring the claim before the Arizona Supreme Court, as a matter of state procedure he could thereafter no longer do so. See State v. Sandon, 161 Ariz. 157, 777 P.2d 220 (1989) (failure to present claims decided by Arizona Court of Appeals to Arizona Supreme Court precludes any further review in Arizona absent certain statutory exceptions). Accordingly, Butler has procedurally defaulted.4 

When a habeas petitioner has procedurally defaulted his lapse may be excused upon a showing of "cause and prejudice." See Sykes, 433 U.S. at 90-91. Butler has made no such showing. Therefore, we are compelled to enforce the procedural bar as a prohibition to consideration by the federal courts of Butler's constitutional claim.

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 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

 1

Two unsuccessful post-conviction relief motions which preceded the state appeal are inconsequential to this appeal

 2

Mohr held that instructing the jury that a defendant's "possession of property recently stolen, unless satisfactorily explained, gives rise to the inference that the Defendant ... was aware ... it [might be] stolen or [that he] in some way participated in its theft" created an unconstitutional burden-shifting presumption. Mohr, 724 P.2d at 1236

 3

While some other Courts of Appeals have held that the failure to invoke discretionary review would not constitute a failure to exhaust state remedies, see Roberts v. Arave, 847 F.2d 528, 529 n. 2 (9th Cir. 1988) (citing cases), this Court has held that such a failure amounts to a failure to exhaust. Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982), cert. denied, 463 U.S. 1212 (1983)

 4

While it is clear that in some sense Butler failed to exhaust remedies by foregoing review in the Arizona Supreme Court, we do not treat this as an exhaustion problem because once available state remedies are foregone, they became unavailable under Arizona law. See Castille v. Peoples, 489 U.S. 346, 351 (1989) ("The requisite exhaustion may ... exist, of course, if it is clear that respondent's claims are now procedurally barred under [state] law."); Harris v. Reed, 489 U.S. 255, 270 (1989) (O'Connor, J., concurring) (noting that the federal courts look to state procedural rules in determining whether remedies are available any longer for the purpose of deciding exhaustion)