Robert Eldridge Jennison, Petitioner-appellant, v. B.d. Goldsmith, Warden; Attorney General of the State Ofarizona, Respondents-appellees, 940 F.2d 1308 (9th Cir. 1991)

The question is whether petitioner Jennison exhausted state remedies, although he failed to present his claims to the Arizona Supreme Court, on the basis of that Court's declarations in Arizona v. Shattuck, 140 Ariz. 582, 684 P.2d 154, 157 (1984) and Arizona v. Sandon, 161 Ariz. 157, 777 P.2d 220, 221 (1989) (en banc), that state remedies were exhausted without seeking review in the Arizona Supreme Court. The district court held he did not.¹  We agree.

The Arizona Supreme Court held in Shattuck counsel need not petition the Court for review to satisfy the obligation imposed upon counsel by Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), because, " [o]nce the defendant has been given the appeal to which he has a right, state remedies have been exhausted," Shattuck, 684 P.2d at 157 (emphasis added), and review by the Arizona Supreme Court was entirely discretionary. The Court broadened this ruling in Sandon, holding a petitioner need not seek review by the Arizona Supreme Court to exhaust state remedies for purposes of federal habeas. Sandon, 777 P.2d at 221.²  The Court said " [n]ot only is this Court not 'required to accept petitions for review in Anders type cases,' we are not required to accept them in any case." Id. (citations omitted). Once decided by the court of appeals, "the case in the Arizona courts is over. The issues decided by the Court of Appeals, even though they had not been presented to this Court in a petition for review, are no longer open to substantive review by this Court, or in any other court in Arizona.... State remedies have been exhausted." Id.

The Arizona Supreme Court has confused review as of right under state law with "the right under the law of the state to raise" an issue within the meaning of the federal habeas statute. 28 U.S.C. § 2254 (1988). While Jennison does not have an appeal as of right to the Arizona Supreme Court, see Ariz.Rev.Stat.Ann. Secs. 12-120.21(A) (1), 13-4031, he does have the right to raise before the Arizona Supreme Court the issue he seeks to raise in federal habeas, see id. Sec. 12-2001; Ariz.R.Crim.P. 31.19 [hereinafter Rule 31.19].³  Although review under Rule 31.19 is discretionary, it is nevertheless a state remedy that remains available to Jennison. See Kellotat v. Cupp, 719 F.2d 1027, 1031 (9th Cir. 1983) (" [T]he discretionary jurisdiction of the Oregon Supreme Court and the nature of its exercise are not sufficient to justify a defendant's bypassing that Court in the regular process of exhausting appellate review."); McNeeley v. Arave, 842 F.2d 230, 231-32 (9th Cir. 1988) (petitioner failed to exhaust state remedies because he did not seek discretionary review by the state supreme court). We must determine then whether the Arizona Supreme Court may authorize the bypass of an available state remedy for federal exhaustion purposes.

We have previously rejected an approach to exhaustion that allowed the bypass of state supreme court review by agreement between the parties. Batchelor v. Cupp, 693 F.2d 859, 862-63 (9th Cir. 1982); see also Grooms v. Keeney, 826 F.2d 883, 885 (9th Cir. 1987); Branch v. Cupp, 736 F.2d 533, 535 (9th Cir. 1984); Allbee v. Cupp, 716 F.2d 635, 635 (9th Cir. 1983). In Batchelor, Oregon public defenders and the state attorney general informally agreed criminal defendants would not seek discretionary review in the Oregon Supreme Court, and in return, the state would not argue failure to exhaust state remedies in response to a federal habeas petition. Batchelor, 693 F.2d at 861. We disapproved this agreement, holding,

Any system that would vest in the public defender an option to bypass state Supreme Court review deliberately while retaining the possibility of federal habeas corpus review is inconsistent with Sec. 2254.

... In the future, the exhaustion requirement of Sec. 2254 will not be deemed satisfied until the petitioner demonstrates that his claim has been presented to the state's highest court, or that no state remedy is available and that the nonavailability was not caused by a deliberate bypass.

Id. at 863.

The plain language of the habeas statute and the reasons underlying Batchelor and subsequent cases convince us Batchelor controls this case.

Batchelor, Grooms, Branch, and Allbee track the plain language of the habeas statute. Section 2254(c) reads, " [a]n applicant shall not be deemed to have exhausted the remedies in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c) (1988). Because Jennison has "the right under the law of [Arizona] to raise, by [a Rule 31.19 petition], the question presented," he has not exhausted state remedies according to the plain language of Section 2254(c).⁴ 

Arizona presents an appealing case for the rule set out in Shattuck and Sandon. The Arizona Supreme Court, like the Oregon Supreme Court, is a policy-setting body in the state judicial center and lacks the resources to consider "large numbers of prisoner petitions seeking to exhaust state remedies," Sandon, 777 P.2d at 220, except for the particular claims petitioners may choose to bring under Rule 31.19. See also Shattuck, 684 P.2d at 157 ("The system is strained to the point that we cannot afford the luxury of repeated review of trivia or issues of small merit."). Allowing prisoners to elect to bypass the Arizona Supreme Court and go directly to federal court would lighten the Court's load and streamline the habeas process.

However, as we pointed out in Batchelor, the policy considerations underlying the statutory exhaustion requirement compel us to reject this argument. The basic principle underlying the exhaustion requirement is that "state courts, like federal courts, have a duty to protect rights secured by the Constitution." Batchelor, 693 F.2d at 862.⁵  The exhaustion requirement also serves the federal interest in economizing scarce federal judicial resources. Batchelor, 693 F.2d at 862 ("If the prisoner's claim is meritorious, and if the state remedy is prompt and complete, there is no need to bring post-conviction proceedings in federal courts.").⁶ 

Petitioner argues the Batchelor court's basis for decision was the discretion left to the public defenders to decide what cases to present to the Oregon Supreme Court. "Public defenders' responsibility to represent their clients forcefully cannot be diluted by an option not to seek review of 'unimportant' cases." Id. at 863. He notes that there is no place for the exercise of discretion by counsel under Sandon--state remedies are to be treated as exhausted for federal habeas purposes in all cases reviewed on the merits by the Arizona court of appeals and subject to discretionary review by the Arizona Supreme Court. Sandon, 777 P.2d at 221. However, the rule adopted in Sandon does not satisfy the concerns of comity and federal judicial economy addressed by the exhaustion requirement.

We are mindful of the problem Sandon seeks to address. We are confident Arizona can ameliorate the burden of reviewing petitions for review by employing "creative summary procedures so that state prisoners may present their federal constitutional claims to the [state] Supreme Court before coming to federal court." Batchelor 693 F.2d at 863; see, e.g., Thompson v. Procunier, 539 F.2d 26, 28 (9th Cir. 1976) (state court presumed to have had opportunity to rule on the merits for the purposes of exhaustion when it denies habeas petition without stating a reason); Harris v. Superior Court, 500 F.2d 1124, 1128-29 (9th Cir. 1974) (en banc) (California Supreme Court "postcard denials" without opinion or citation satisfy exhaustion requirement).⁷ 

Although the district court correctly determined petitioner did not exhaust state remedies when he failed to seek review of his claims by the Arizona Supreme Court, we reverse and remand for consideration of whether Supreme Court review is procedurally barred under Arizona law. See Castille v. Peoples, 489 U.S. 346, 351-52, 109 S. Ct. 1056, 1060, 103 L. Ed. 2d 380 (1989) (holding petitioner failed to exhaust when he presented his claims in petitions for allocatur, but remanding since " [t]he requisite exhaustion may nonetheless exist ... if it is clear that respondent's claims are now procedurally barred under [state] law.").

REVERSED and REMANDED.