Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1991)

MEMORANDUM^* 

Michael Dennis Riley, an Arizona state prisoner, appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas petition. Riley contends that the district court erred when it concluded that his 1989 petition was a "successive petition" within the meaning of Rule 9(b), Rules Governing Sec. 2254 cases, 28 U.S.C. foll. Sec. 2254; 28 U.S.C. § 2244(b). We reverse and remand with instructions to allow Riley to present evidence on his claim that he did not have effective assistance of counsel at his trial.

FACTS

In 1983, Riley was convicted in Arizona state court of two counts of armed robbery and burglary. At the beginning of the trial, the court clerk read the indictment to the jury and mistakenly read an allegation that Riley previously had been convicted of armed robbery. Riley's trial counsel did not object to this error or move for a mistrial. After the jury returned its verdict, the prosecutor informed the court and defense counsel that the alternate juror appeared to have overheard a conversation between the prosecutor and a detective about Riley's prior conviction. Allegedly, this juror, who had been excused from the jury before it retired to deliberate, told the prosecutor that the jurors had discussed whether Riley had prior convictions during trial. Although the trial judge suggested that defense counsel might "want to follow that up and talk to [the juror]," defense counsel took no action.

On direct appeal, Riley's appellate counsel did not raise either the issue that the jurors had been improperly informed of Riley's prior conviction by the court clerk, or that they may have discussed whether he had a prior criminal record before they received the case. Instead, appellate counsel informed Riley that the issue of whether the jury had improperly discussed his prior conviction should be raised in a petition for post-conviction relief. When Riley raised this issue in his petition for post-conviction relief, however, the petition was denied because the issue had not been raised on direct appeal. Moreover, after the petition was denied, Riley's post-conviction counsel failed to file a motion for rehearing. Instead, counsel filed a notice of appeal, which the state court treated as a petition for appellate review. Under state law, however, counsel's failure to file a motion for rehearing constituted a jurisdictional bar to appellate review of the denial of post-conviction relief.

In 1986, Riley filed his first pro se habeas petition in federal court ("the 1986 petition"). Riley claimed that (1) the clerk's reading of his prior conviction to the jury and the alternate juror's comment that the jury had discussed his prior conviction violated his right to a fair trial by an impartial jury, and (2) he received ineffective assistance of counsel because his trial counsel failed to object to these errors, his appellate counsel failed to raise them on direct appeal, and his post-conviction counsel failed to file a petition for rehearing from the denial of his state court petition for post-conviction relief. The district court dismissed the petition on the ground that Riley's ineffective assistance of counsel claims had not been exhausted in state court.¹ 

Riley did not appeal the district court's dismissal of the 1986 petition, but rather returned to state court and exhausted his ineffective assistance of counsel claims. Both the trial court and the court of appeals ruled against Riley on the merits of his claims. The Arizona Supreme Court denied without comment his petition for review.

In 1989, Riley filed a second pro se federal habeas petition. The district court dismissed the 1989 petition, without holding an evidentiary hearing, on the ground that the petition was successive because (1) it raised the same claims as the 1986 petition, and (2) the dismissal of the 1986 petition was a decision on the merits. Riley timely appeals.

Riley contends that the district court erred in dismissing his 1989 petition as successive because the dismissal of his 1986 petition was not a decision on the merits of his claims. We agree.

This circuit has recognized the general rule that a district court's dismissal for failure to exhaust state remedies is not a decision on the merits for purposes of the successive petition doctrine. See Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir. 1990), citing, Simpson v. Wainwright, 488 F.2d 494, 495 (5th Cir. 1973); Fuller v. Florida, 473 F.2d 1383, 1384 (5th Cir. 1973); United States, Ex Rel. Senk v. Brierley, 471 F.2d 657, 659-60 (3rd Cir. 1973); Krupniek v. Crouse, 366 F.2d 851, 852 (10th Cir. 1966). Further, the district court's additional statements regarding the merits of Riley's claim were not sufficient to justify the dismissal of Riley's claim, even if elevated to something more than dictum.²  The district court did not hold an evidentiary hearing and there is no indication that the court conducted an independent review of the state court record in reaching its decision on the merits of Riley's claim. Thus, the court did not comply with the procedural requirements necessary before rendering a decision on the merits. Sanders v. United States, 373 U.S. 1, 15 (1963); see also 28 U.S.C. § 2244(b); Rule 9(b), 28 U.S.C. foll. Sec. 2254.

The state also argues that the district court's order dismissing the 1986 petition was a ruling that Riley procedurally defaulted in the state court. If so, Riley would be precluded from bringing his 1989 claim.

This contention is also meritless.

The state itself argued that Riley's 1986 petition should be dismissed for failure to exhaust state remedies. Accordingly, having persuaded the court to dismiss the petition on this ground, the state is now estopped from arguing that the petition actually should have been dismissed for procedural default. See Russell v. Rolfs, 893 F.2d 1033, 1038-39 (9th Cir. 1990).³ 

Form of Relief on Remand

Riley contends that this court should order the district court to grant the writ of habeas corpus because the undisputed facts contained in the record on appeal establish as a matter of law that he received ineffective assistance from his trial counsel.

We recognize that there is a serious question on the merits of Riley's ineffective assistance claim which may entitled him to relief.

On its face, the performance of Riley's counsel at trial appears to have resulted in a violation of state law,⁴  and was deficient under the Supreme Court standards set in Strickland v. Washington, 466 U.S. 668, 687 (1984).⁵  See 466 U.S. at 687-89. However, we decline to presume that the error resulted in sufficient prejudice for Riley to prevail in this case. Rather, we remand to the district court for an evidentiary hearing.

REVERSED and REMANDED.