Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1981)

MEMORANDUM^** 

Petitioner Otis L. Rodgers filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988). The district court granted respondents' Motion for Summary Judgment. We now affirm.

Rodgers' petition raised four claims. In this appeal, he does not challenge the district court's denial of the first three of these claims: his allegation that his conviction constituted a violation of the Genocide Treaty, his allegation that he was denied effective assistance of counsel on his first direct appeal, and his allegation that he was denied effective assistance of counsel on his direct appeal after resentencing. Therefore, we do not address these issues here.

In this appeal, Rodgers challenges only the district court's dismissal of his claim that the government unconstitutionally convicted him by failing to disclose the potentially exculpatory evidence that it had made a deal with Carla Williams, one of the primary witnesses against him. In this deal, the government entered into a plea agreement with Williams whereby it reduced a pending charge against her from a felony to a misdemeanor in exchange for her cooperation as a witness against Rodgers. The district court held that it was precluded from reviewing the merits of Rogers' claim because Rodgers had failed to establish cause for not exhausting his state remedies.

A petitioner seeking federal habeas corpus relief must first exhaust his state court remedies. See 28 U.S.C. § 2254 (1988). If the petitioner's federal claim was not resolved on the merits in state court due to his procedural default, the petitioner must demonstrate cause for noncompliance with the state procedure and actual prejudice resulting from the alleged violation before a federal court will consider the merits of his claim. See Wainwright v. Sykes, 433 U.S. 72, 84-87 (1977). " 'Cause' is a legitimate excuse for the default; 'prejudice' is actual harm resulting from the alleged constitutional violation." Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). Rodgers failed to raise his claim regarding the Williams plea agreement on direct appeal; therefore, the Arizona Court of Appeals held that Rodgers was precluded from raising this claim in a petition for post-conviction relief because "he had knowingly, voluntarily, and intelligently not raised this issue in his previous direct appeal...." Because Rodgers is unable to pursue this claim on the merits in state court due to a procedural default, he must meet the "cause and prejudice" standard in order to be entitled to federal court review of the merits of his habeas petition. We affirm the district court's holding that Rodgers failed to establish cause for his procedural default.

Rodgers asserts that he did not raise his claim regarding the undisclosed deal on direct appeal because he did not know of the deal while he was still procedurally able to pursue state court remedies. He asserts that he therefore had good cause for not pursuing this claim in state court. The government argues that Rodgers was aware of the deal at the time of his trial and so had no cause for failing to raise this issue on direct appeal.

This court reviews de novo the district court's grant of summary judgment. In reviewing a summary judgment motion, we view the evidence in the light most favorable to the nonmoving party. See Guaranty National Insurance Co. v. Gates, 916 F.2d 508, 511 (9th Cir. 1990).

On March 10, 1981, approximately two weeks before his trial, Rodgers complained to the presiding judge that Williams was receiving favorable treatment for her testimony against him. Rodgers complaint made the following charge: "My complaint is that Carla J. Williams has been treated with Favoritism for testifying against me, Otis L. Rogers, CR 114188. Per phone conversation with Deputy County Attorney, Noel Levy, March 6, 1981, restitution of this new crime is all that will be asked of her."

Because the plea agreement was not entered until March 12, 1981, Rodgers did not know the details of the plea agreement at the time he filed his Favoritism Complaint. Nevertheless, he was informed on March 6 that the prosecution was going to request favorable treatment for Williams, and he suspected that the reason was to reward Williams for her testimony against him. Thus, Rodgers was on notice of the plea agreement and could have questioned Williams about it at trial. Because Rodgers knew in advance of his trial that Williams was making a favorable deal with the prosecution, he could have pursued this issue in state court. Thus, he has not shown cause for his failure to raise the issue in state court, and this failure was a procedural default that now bars him from raising this claim in federal court.

Rodgers' claim regarding a $297.53 payment to Williams also has no merit. Williams was paid only a standard witness fee. Even if Rodgers did not know of this payment, and therefore had cause for not raising this claim on direct appeal, he was not prejudiced by this lack of knowledge, because this information would not have affected his ability to impeach Williams.

AFFIRMED.