940 F2d 1535 Somyk v. Ryan

940 F.2d 1535

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Philip Roger SOMYK, Petitioner-Appellant,
v.
Charles RYAN, Warden, Respondent-Appellee.

No. 91-15079.

United States Court of Appeals, Ninth Circuit.

Submitted July 29, 1991.*
Decided Aug. 1, 1991.

Before FARRIS, ALARCON and THOMAS G. NELSON, Circuit Judges.

1

MEMORANDUM**

2

Philip Roger Somyk, an Arizona state prisoner, appeals pro se the district court's denial of his 28 U.S.C. Sec. 2254 habeas petition. Somyk contends that the district court erred in denying his petition because of a state procedural default. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989), and we affirm.

3

In 1987, Somyk was convicted of kidnapping, aggravated robbery, and theft by control of property valued at more than $1,000. Somyk appealed to the Arizona Court of Appeals, and in September 1988 the Court of Appeals affirmed Somyk's conviction and sentence. Somyk did not file a petition for review of the decision by the Arizona Supreme Court. In March 1990, however, Somyk filed a petition for special action in the Arizona Supreme Court and raised five issues challenging his conviction and sentence. The Supreme Court dismissed the petition for special action, stating that the issues Somyk sought to raise should have been raised in a petition for review of the Court of Appeal's 1988 decision and citing State v. Sandon, 161 Ariz. 157, 777 P.2d 220 (1989). In August 1990, Somyk filed a habeas petition in federal court and raised the same five issues that he had raised in his petition for special action in the Arizona Supreme Court. The district court ruled that Somyk had procedurally defaulted by failing to raise these issues on direct appeal in a timely petition for review by the Arizona Supreme Court, and therefore denied the federal habeas petition.

4

To satisfy the exhaustion requirement, a federal habeas petitioner must provide the highest state court with an opportunity to rule on the merits of his federal claims. See McQuown v. McCartney, 795 F.2d 807, 809 (9th Cir.1986). The exhaustion requirement is not satisfied, however, if federal claims are presented to the highest state court for the first time in a procedural context in which the merits will be considered only if there are "special and important reasons." Castille v. Peoples, 109 S.Ct. 1056, 1060 (1989). Nevertheless, the exhaustion requirement is satisfied if it is clear that the petitioner's claims cannot be presented in state court because they are procedurally barred under state law. Id. Moreover, "[i]t is well settled that when a petitioner at one time could have raised his constitutional claim in state court but did not and is now barred from doing so by a state rule of procedure, he has procedurally defaulted on his claim." Tacho v. Martinez, 862 F.2d 1376, 1378 (9th Cir.1988) (citing Murray v. Carrier, 477 U.S. 478, 485 (1986); Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977)).

5

Under Arizona rules of procedure, Somyk was required to present his claims in a petition for review by the Arizona Supreme Court either on direct appeal or in a petition for post-conviction relief before he could file a federal habeas petition raising these claims. See Ariz.R.Crim.P. 31.19 (direct appeal); Ariz.R.Crim.P. 32.9(f) (post-conviction relief).1 Somyk's attempt to present his claims to the Arizona Supreme Court in his petition for special action was not an adequate substitute for raising them on direct appeal or in a petition for post-conviction relief. See Castille v. Peoples, 109 S.Ct. at 1060; King v. Superior Court, 138 Ariz. 147, 149, 673 P.2d 787, 789 (1983) (state appellate court's decision whether to consider merits of claims raised by way of petition for special action is entirely discretionary); Bilagody v. Thorneycroft, 125 Ariz. 88, 92, 602 P.2d 965, 969 (Ct.App.1979) (petition for special action is a method for obtaining extraordinary judicial relief). Moreover, it is clear from the Arizona Supreme Court's order dismissing his petition for special action that Somyk is now barred by a state rule of procedure from raising his federal claims in state court. See Sandon, 161 Ariz. at 158, 777 P.2d at 221 (issues decided by the Court of Appeals that are not presented to the Supreme Court in a petition for review are no longer open to substantive review in the Supreme Court, or in any other court in Arizona). Therefore, Somyk has procedurally defaulted on his claims. See Tacho, 862 F.2d at 1378.2

6

Nevertheless, the determination that Somyk procedurally defaulted in state court does not end our analysis. Although a procedural default bars litigation of a constitutional claim in state court, a state prisoner may still obtain federal habeas relief upon a showing of cause and actual prejudice. Reed v. Ross, 468 U.S. 1, 11 (1984) (citing Engle v. Isaac, 456 U.S. 107, 129 (1982)). Here, however, Somyk has not established cause for his failure to comply with Arizona's procedural requirements. Accordingly, we need not consider whether he suffered actual prejudice. See Tacho, 862 F.2d at 1381.

7

AFFIRMED.

*

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

1

Although the Arizona Supreme Court's decision whether to grant a petition for review is discretionary, in order to exhaust state remedies, a state prisoner must seek such review before bringing a federal habeas petition. See Roberts v. Arave, 847 F.2d 528, 529-30 (9th Cir.1988); Batchelor v. Cupp, 693 F.2d 859, 862-63 (9th Cir.1982), cert. denied, 463 U.S. 1212 (1983); 28 U.S.C. Sec. 2254(c)

2

On appeal, Somyk argues that the district court should have reached the merits of his claims because the Arizona Supreme Court's order dismissing his petition for special action does not satisfy the "plain statement" rule for procedural default established in Harris v. Reed, 109 S.Ct. 1038, 1043 (1989). This argument fails because the Harris plain statement rule is applicable only if "the decision of the last state court to which the petitioner presented his federal claims ... fairly appears to rest primarily on federal law or to be interwoven with federal law." Coleman v. Thompson, 59 U.S.L.W. 4789, 4792 (U.S. June 24, 1991). Here, because the Arizona Supreme Court's decision does not involve federal law at all, the Harris rule is inapplicable