Ary St. Hilaire, Petitioner-appellant, v. Terry Stewart, Director; Meg Savage, Warden; Attorneygeneral for the State of Arizona, Respondents-appellees, 129 F.3d 127 (9th Cir. 1997)

MEMORANDUM^* 

Gary St. Hilaire, a former Arizona state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 petition. St. Hilaire contends the district court erred by dismissing his petition without prejudice for failure to exhaust state remedies. We have jurisdiction under 28 U.S.C. § 2253. We review de novo, see Calderon v. Prunty, 59 F.3d 1005, 1008 (9th Cir. 1995), and affirm.

In a previous section 2254 petition, St. Hilaire raised the claim that he suffered a double jeopardy violation when the Arizona Superior Court exercised jurisdiction over his appeal because the notice of appeal was untimely under Arizona state law. While the federal petition was pending, St. Hilaire filed a habeas corpus petition in the Arizona Supreme Court raising the same claim. The Arizona Supreme Court dismissed that petition without prejudice during the pendency of St. Hilaire's appeal to this court of the district court's denial of the federal petition. Approximately eight months later, we issued a memorandum decision dismissing the federal petition without prejudice for exhaustion of state remedies. See St. Hilaire v. Lewis, No. 93-15900 (9th Cir. July 15, 1994). Instead of filing a new petition for post-conviction relief under Ariz. R.Crim. P. 32, St. Hilaire filed a motion in the Arizona Supreme Court to reopen his prior habeas corpus petition which had been dismissed without prejudice. The Arizona Supreme Court denied the motion to reopen for lack of cause.

St. Hilaire then filed the instant petition in district court. The district court found that St. Hilaire had failed to properly exhaust his untimely notice of appeal claim because he had presented the claim to the state court in a procedural context in which the merits were unlikely to be considered. We agree. See Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (per curiam) (filing habeas corpus petition in Arizona Supreme Court did not constitute fair presentation for exhaustion purposes). Accordingly, we affirm the district court's judgment dismissing the petition without prejudice.

AFFIRMED.