Unpublished Disposition, 937 F.2d 612 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 612 (9th Cir. 1989)

Kenneth Andrew FRIEDMAN, Petitioner-Appellant,v.STATE of Montana, et al., Respondents-Appellees.

No. 89-35389.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 5, 1991.* Decided July 8, 1991.

Before WALLACE, Chief Judge, O'SCANNLAIN, Circuit Judge, and BURNS,**  District Judge.

MEMORANDUM

Friedman appeals from the district court's dismissal of his petition for habeas corpus. The district judge had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254. We have jurisdiction pursuant to 28 U.S.C. § 2253. We affirm in part, reverse in part, and remand.

The district judge dismissed Friedman's habeas corpus petition, apparently under Rule 9 of the Rules Governing Habeas Corpus Cases under Section 2254, after finding that the petition alleged the same grounds for relief raised in an earlier petition. The judge also found that any additional grounds for relief constituted an abuse of the writ. Friedman argues that Rule 9 does not authorize dismissal of his habeas petition because: (1) his prior habeas petition raised different issues than the ones raised in this petition; (2) the prior determination was not on the merits; and (3) the "ends of justice" mandate entertaining successive petitions. The district court's decision to dismiss the petition under Rule 9 is reviewed for abuse of discretion. See Harris v. Pulley, 885 F.2d 1354, 1369 (9th Cir. 1988), cert. denied, 110 S. Ct. 854 (1990).

Friedman was convicted in 1982 and sentenced to 40 years' imprisonment. State v. Friedman, 225 Mont. 373, 374, 732 P.2d 1322, 1323 (1987) (Friedman) . The sentence review board subsequently modified the sentence to 40 years with 20 years suspended, provided that Friedman successfully complete a treatment program in Florida. However, Friedman was unsuccessful in the program, and was returned to the prison in 1984. Id. at 375, 732 P.2d at 1324.

Upon Friedman's return, prison officials informed him that his original 40 year sentence had been reimposed. As an afterthought, the county prosecutor filed a petition for revocation of the probationary term of the sentence. The Montana Supreme Court ordered the trial judge to hold an evidentiary hearing prior to the revocation. The hearing was held in November of 1985, and the judge issued an order of revocation in May of 1986. Id. at 376, 732 P.2d at 1324.

After the order of revocation, Friedman appealed to the Montana Supreme Court, alleging that the state violated his due process rights by failing to abide by probation revocation procedures set forth in Morrissey v. Brewer, 408 U.S. 471 (1972). Friedman also alleged that the decision to revoke probation was not supported by the evidence. The Montana Supreme Court rejected both these claims. Friedman, 225 Mont. at 374, 732 P.2d at 1323. Friedman's petition for state habeas corpus relief was denied on September 20, 1988.

Friedman filed his first habeas corpus petition in federal court on May 7, 1985, alleging constitutional defects in the taking of his guilty plea, and in his sentencing. He also alleged that the probation condition that he complete a treatment program constituted cruel and unusual punishment. He supplemented this petition with motions to consolidate in 1986, 1987, and August 1, 1988. The record does not show that these motions were ever granted.

The present habeas petition was filed on January 23, 1989. Although it is difficult to discern the precise grounds for relief, it appears that Friedman is raising the same issues as in his 1987 state appeal. Essentially, he alleges that the probation revocation hearing was conducted in violation of due process.

The magistrate found this second petition identical to the first one, in that "both essentially allege an abuse of discretion and denial of relief by the Montana Supreme Court." However, Friedman's last habeas petitions challenge two separate events: his initial conviction and sentencing, and the 1986 revocation of probation. Although Friedman's claims of abuse of discretion may be similar, the factual predicates of these claims are distinct. Therefore, we agree that the issues raised in the second petition are not identical to the ones being litigated in the first petition.

The State of Montana nonetheless argues that the second petition was an abuse of the writ. Because the revocation of probation occurred while the first habeas petition was being litigated, the State claims that Friedman should have amended the first habeas petition to include the new claims. This precise argument was not raised below, and we remand to the district court to consider it in light of the new standards for abuse of the writ. See McClesky v. Zant, 111 S. Ct. 1454 (1991).

To the extent that Friedman challenges the original conviction and imposition of conditions of probation, these claims were raised earlier and were properly dismissed under Rule 9.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

Honorable James M. Burns, United States District Judge, District of Oregon, sitting by designation