Unpublished Disposition, 934 F.2d 324 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 934 F.2d 324 (9th Cir. 1990)

SITTINGDOWN, a/k/a Robert E. Proell, Petitioner-Appellant,v.Joseph MARTINEZ, et al., Respondents-Appellees.

No. 90-16588.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.* Decided May 31, 1991.

Before HUG, KOZINSKI and LEAVY, Circuit Judges.


Sittingdown, an Arizona state prisoner, appeals pro se the district court's dismissal of his habeas corpus petition under 28 U.S.C. § 2254 for failure to exhaust state remedies. Sittingdown contends that exhaustion is excused because the Arizona Superior Court's delay in considering his petition for post-conviction relief rendered state court remedies futile. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

We review de novo the dismissal of a section 2254 habeas petition. Evans v. Lewis, 855 F.2d 631, 633 (9th Cir. 1988). A federal court normally will not consider a habeas petition unless the petitioner has exhausted available state judicial remedies on every ground presented in the petition. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 521 (1982). To exhaust state remedies, the petitioner must fairly present his claim to the highest state court, and that court must dispose of the claim on the merits. Hayes v. Kincheloe, 784 F.2d 1434, 1437 (9th Cir. 1986); cert. denied, 484 U.S. 871 (1987). Submission of a claim to the state's highest court for discretionary review does not amount to a fair presentation of the claim and therefore does not satisfy the exhaustion requirement. Castille v. Peoples, 498 U.S. 346, 351 (1989). In Arizona, a petition for special action is a discretionary matter. Rules 7 and 8, Ariz.R.P.Spec.Actions; King v. Superior Court, 138 Ariz. 147, 149, 673 P.2d 787, 789 (1983).

Exhaustion is excused "if there is no opportunity to obtain redress in a state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief." Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam); see 28 U.S.C. § 2254(b). A delay of four to six months does not render state court remedies ineffective and thus futile under Duckworth. Aldan v. Salas, 718 F.2d 889, 891 (9th Cir. 1983).

Here, on October 29, 1987, the Arizona Court of Appeals affirmed Sittingdown's direct appeal from his third conviction for four counts of sexual conduct with a minor. The record does not show that he appealed the court of appeals' decision to the Arizona Supreme Court. The record also does not show that Sittingdown sought state court appellate review of the Arizona Superior Court's March 23, 1990 dismissal of his January 24, 1989 petition for post-conviction relief. Furthermore, the Arizona appellate courts refused to accept jurisdiction over his petitions for special action, which he filed while his petition for post-conviction relief was pending in superior court. Accordingly, the district court did not err by finding that Sittingdown did not exhaust state remedies because he did not fairly present any of his claims to the Arizona Supreme Court. See Castille, 498 U.S. at 351; Hayes, 784 F.2d at 1437.

When Sittingdown filed his federal habeas petition on July 10, 1989, his petition for post-conviction relief had been pending in the Arizona Superior Court since January 24, 1989. This six-month delay did not render state court remedies futile and thus excuse his failure to exhaust those remedies. See Duckworth, 454 U.S. at 3; Aldan, 718 F.2d at 891.

We therefore affirm the district court's dismissal of Sittingdown's habeas petition for failure to exhaust state remedies.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 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