MEMORANDUM**

The district court denied George Edgar Thomas' pro se petition for a writ of habeas corpus under 28 U.S.C. Sec. 2241 (1982). We affirm.

In 1982, a jury in an Arizona state court convicted Thomas of armed robbery, aggravated robbery, and burglary in the first degree. The jury found that, in November 1981, Thomas and an accomplice, Lisa Click, had forced a restaurant employee to turn over cash from the restaurant's cash register at gun point. The employee identified Thomas after the incident and Lisa Click testified against him at trial. Thomas now is serving his sentence in an Arizona prison.

After his conviction, Thomas petitioned the trial court for a rehearing and for postconviction relief. He asserted specifically that: (1) prison officials had violated his constitutional rights by interfering with his mail; (2) jail conditions had violated the eighth amendment and due process; (3) his trial counsel had been ineffective; and (4) the state had made untimely allegations of his prior convictions at his trial. The court summarily denied both petitions.

Thomas then appealed both the conviction and the trial court's denial of postconviction relief to Arizona Court of Appeals. His appointed counsel argued that the trial court had erred both in denying a motion to preclude allegations of prior convictions and in denying a motion to suppress a show-up identification. (The appellate court refused to consider a "supplemental" brief that Thomas filed on his own behalf.) The appellate court affirmed the convictions in a memorandum decision, and the Supreme Court of Arizona denied review.

Thomas later filed a second petition for postconviction relief in the state trial court. This time, Thomas complained of: (1) a denial of a speedy trial; (2) prosecutorial misconduct; (3) improper sentencing; (4) sentencing in violation of the ex post facto clause; (5) ineffective assistance of trial counsel; and (6) ineffective assistance of appellate counsel. The trial court found all of these claims precluded by Thomas' failure to raise them in his first petition and dismissed them. After the trial court denied rehearing, Thomas petitioned the Arizona Court of Appeals for review. The appellate court found no support for Thomas' claim of ineffective assistance of appellate counsel and found his other claims precluded. The Arizona Supreme Court denied review.

Thomas then petitioned the United States district court below for a writ of habeas corpus. Thomas claims in his petition that he has suffered: (1) a violation of his right to a speedy trial; (2) ineffective assistance of trial counsel; (3) an improper reading, copying, and distributing of his mail; (4) ineffective assistance of appellate counsel; and (5) a denial of due process and equal protection of the law. The district court referred the case to a magistrate, who recommended that the court grant summary judgment to the respondents ("the state"). The court adopted the magistrate's recommendation and Thomas appealed.

A state prisoner may petition a district court for a writ of habeas corpus under 28 U.S.C. Sec. 2254 (1982). As a matter of comity, however, a district court must dismiss a petition that contains any claims for which the prisoner has not exhausted his state court remedies. See Rose v. Lundy, 455 U.S. 509, 510 (1982). A prisoner has exhausted his remedies if he has none available at the time of the petition. See Engle v. Isaac, 456 U.S. 107, 125 n. 28 (1982). Thomas has completed his direct appeals and, under Ariz.R.Crim.P. 32.2, cannot seek any further review of the claims that he has raised in his petition. Thomas, therefore, has exhausted his state remedies. This court has jurisdiction over Thomas' appeal under 28 U.S.C. Sec. 2253 (1982).

This court reviews de novo the denial of a writ of habeas corpus. See Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 108 S.Ct. 198 (1987).

Each of Thomas' claims has a slightly different procedural history. We, therefore, consider each of them separately. We conclude that the district court did not err in denying Thomas relief.

A. Speedy Trial and Prosecutorial Misconduct

Thomas first raised his speedy trial and prosecutorial misconduct claims in his second petition for postconviction relief. The Arizona courts dismissed these claims without reaching their merits because Thomas lost them by failing to raise them in his first petition for postconviction relief or in his direct appeal. A federal court can consider claims that a habeas corpus petitioner lost through a "procedural default," such as this, only if the petitioner can show " 'cause and actual prejudice.' " Reed v. Ross, 468 U.S. 1, 11 (1984) (quoting Engle, 456 U.S. at 129). Thomas can show neither.

Thomas cannot show cause for his default because he has not alleged any reason for failing to raise the claims at the appropriate time. Although Thomas could argue that his counsel erred in failing to raise them, the Supreme Court has held that "ignorant or inadvertent attorney error" does not constitute cause. Murray v. Carrier, 477 U.S. 478, 487 (1986).

Thomas cannot show prejudice because he has not alleged that a speedier trial or a trial without the alleged prosecutorial misconduct would have changed the outcome of his case. To show prejudice, a petitioner must show that errors at trial "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982). Although Thomas makes rather vague suggestions that a purposeful delay by the prosecution caused him to lose evidence and witnesses, he does not say what evidence he lost or how witnesses could have aided him. We, accordingly, adopt the magistrate's conclusion that:

[a]ny error in the state proceedings clearly was harmless. Petitioner was identified by the victim who[m] petitioner robbed with a gun. Petitioner's accomplice, Lisa Click, testified against him. Petitioner's claims fail to undermine the accuracy of the guilt or sentencing determination.

R. at 25:16-17.

Thomas lost his claim of ineffective assistance of trial counsel on the merits in the trial court on his first petition for post-conviction relief. His counsel did not raise this claim on appeal. See Record, Exhibits H & I. When Thomas later tried to raise the claim in his second petition for post-conviction relief, the trial court, appellate court, and supreme court refused to hear it on procedural grounds. We conclude that, even though a state court once decided the claim on the merits, Thomas' failure to appeal the issue constituted a procedural default. See Murray, 477 U.S. at 491. This default prevents Thomas from raising the claim because, for the reasons discussed above, Thomas cannot show cause or actual prejudice.

Thomas' claim that prison officials deprived him of a fair trial by improperly reading, copying, and distributing his mail was first lost on the merits at an evidentiary hearing in the trial court. The trial court found that, even if the officials had done what Thomas claims they did, their conduct in no way affected Thomas' trial. See Record, Exhibit W, at 237. Thomas lost the claim on the merits a second time in his first petition for postconviction relief. Thomas did not appeal that loss. While Thomas appealed the denial of relief, his counsel argued only about the denial of a motion to preclude allegations of prior convictions and the denial of the motion to suppress show-up identification. See Record, Exhibits H & I.

The net effect is a procedural default with respect to the mail interference claim. As with Thomas' previous claims, we find that Thomas has not shown cause and actual prejudice in connection with the default. He therefore cannot raise the claim now.

D. Ineffective Assistance of Appellate Counsel

Thomas lost his claim of ineffective assistance of appellate counsel on the merits rather than through a procedural default. He presented the claim to the trial court in his second petition for postconviction relief. Although the trial court incorrectly found the claim barred by Ariz.R.Civ.P. 32.2, the Court of Appeals rejected the claim on substantive grounds. We, therefore, consider the claim on the merits.

The Supreme Court has made clear that "to establish ineffective representation, the defendant must prove both incompetence and prejudice." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (footnote omitted). Thomas claims that he asked his counsel to raise seven nonfrivolous issues when he appealed his state court conviction, but his attorney did not comply with his request.1

We cannot find his counsel incompetent merely for refusing to raise the claims. The Supreme Court specifically has held that "[f]or judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every 'colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy.... Nothing in the Constitution ... requires such a standard." Jones v. Barnes, 463 U.S. 745, 754 (1983) (footnote omitted). Moreover, we can see no prejudice. After reviewing the record, we believe that the decision not to raise the claims could not have had an "effect on the judgment." Strickland v. Washington, 466 U.S. 668, 691 (1984).

Thomas previously has not raised his claim that the cumulative effect of the alleged errors at his trial violated due process and equal protection. Moreover, under Ariz.R.Crim.P. 32.2 he cannot now raise the claim before the state courts. He, therefore, has lost the claim through a procedural default. For the same reasons discussed above, we find that Thomas cannot show cause and actual prejudice in connection with the default. He thus cannot raise the claim now.

AFFIRMED.