White v. Lewis

• Decision Date: 08 May 1989
• Docket Number: No. 88-2455,88-2455
• Citation: 874 F.2d 599
• Parties: Willis WHITE, Petitioner/Appellant, v. Samuel A. LEWIS, et al., Respondents/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 599

874 F.2d 599

Willis WHITE, Petitioner/Appellant, v. Samuel A. LEWIS, et al., Respondents/Appellees.

No. 88-2455.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 9, 1989.

Memorandum March 16, 1989.

Opinion May 8, 1989.

Alex A. Gaynes, Law Office of Alex A. Gaynes, Tucson, Ariz., for petitioner-appellant.

Eric J. Olsson, Asst. Atty. Gen., Tucson, Ariz., for respondents-appellees.

Appeal from the United States District Court for the District of Arizona.

Before GOODWIN, Chief Circuit Judge, ALARCON and NELSON, Circuit Judges.

GOODWIN, Chief Circuit Judge:

White appeals the dismissal of his petition for a writ of habeas corpus on the ground that White had not raised his claims on appeal in state court and had failed to show cause for the default and resulting prejudice. We affirm.

White's principal argument on appeal is that the state's motion to dismiss his petition was an improper pleading under the rules governing actions brought under 28 U.S.C. Sec. 2254. A motion to dismiss, however, is a valid pleading under the rules. In resisting the motion, White had the burden to establish cause and prejudice. Because he failed to meet that burden, the district court correctly dismissed his petition.

BACKGROUND

White was convicted in Arizona state court of armed robbery and kidnapping. The facts, taken from the opinion of the Arizona Court of Appeals, are as follows:

The victims, Robert and Deborah, were sitting in the parking lot of the Baron's Restaurant and Lounge in Tucson shortly after midnight on September 8, 1981. There were other cars parked in the lot. A car suddenly pulled up behind the car in which they were sitting. Immediately two men jumped out, ran to each side of the victim's vehicle and each held a gun to the victims. Each robber wore a ski mask. The robber on Robert's side demanded his money and car keys, and he complied with that demand. At the same time Deborah gave the robber on her side two $1 bills. The victims were then instructed to walk from the car, through the lot, and into the desert without turning around, which they did. At that time a Tucson Police Department officer drove into the lot on routine patrol. Both robbers then attempted to walk away from the scene but returned at the request of the policeman who by then had secured some back-up assistance. Nevertheless one of the robbers did manage to disappear from the scene.

The appellant was the other person detained by the police. He admitted his wife owned the car which had not been moved and was still parked behind the victims' car. He also admitted driving the car into the parking lot and that another person, in addition to the victims, had been at the scene. A search of his person produced two $1 bills.

White's convictions and sentences were affirmed on direct appeal and review was denied by the Arizona Supreme Court.

Approximately two years later, White sought post-conviction review under Rule 32, Arizona Rules of Criminal Procedure, raising two constitutional issues, not raised on direct appeal, on which he later based his federal habeas corpus petition.

(1) Violation of the right to counsel under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and;

(2) Denial of the right of confrontation under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

The state trial court dismissed White's petition, finding that his failure to raise these issues on direct appeal constituted a waiver and that relief therefore was unavailable under Rule 32.

Six months later, White filed another state Rule 32 petition alleging the same grounds and claiming that significant changes in the relevant state law justified a renewed petition. The state court again denied the petition, finding that the issues raised could have been raised on appeal and that they would not have affected the jury verdict in any manner. White did not seek rehearing by the trial court or review by higher state courts under procedures made available by Rule 32.9. Instead he filed the instant petition for a writ of habeas corpus in the district court.

The district court issued an order for respondents to "show cause by written response within thirty days ... as to why a writ should not issue." The state responded with a motion to dismiss, alleging that White had failed to show cause and prejudice for his procedural default in the state courts as required by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The state requested additional time to address the merits should the district court find them not precluded. The state did not allege that White had failed to exhaust his state remedies.

DISCUSSION

I. Exhaustion

As a preliminary matter, we must determine whether White has exhausted his state remedies, and if he has not, whether to exercise our discretion to hear the case. See Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987) (holding that where a state has failed to raise a non-exhaustion defense in the district court, the court of appeals should determine "whether the interests of comity and federalism will be better served" by addressing the merits or requiring additional state proceedings).

The state suggests that White has failed to exhaust state remedies because he did not seek review of the state trial court's denial of post-conviction relief under Arizona's Rule 32.9. The state did not raise non-exhaustion in the district court and urges us to use our discretion to hear the case despite the failure to exhaust. While the state is correct that there would be little purpose in sending this case back to state court, we need not exercise the discretion authorized by Granberry because White has, in fact, met the exhaustion requirement.

Dismissal of a federal habeas petition for failure to exhaust is appropriate only if the prisoner had a currently available state remedy at the time of the federal petition. Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 1570 n. 28, 71 L.Ed.2d 783 (1982). In this case, White had no such remedy available. Arizona's Rule 32.9 requires that a motion for rehearing be made within ten days of a trial court's denial of post-conviction relief and that a petition for review of a trial court's decision be filed within ten days of a denial of rehearing. These deadlines had long passed when White filed the pending petition. See Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir.1982) (exhaustion requirement satisfied when time for seeking review of judgment of state court of appeals had lapsed and state post-conviction relief was unavailable).

White's state procedural default provides a further, independent, reason for finding that the defaulted claims are exhausted. In Engle, the Court dealt with an Ohio statute which precluded collateral review of claims that could have been raised at trial or on direct appeal. The Court found that because the habeas petitioner's challenge to Ohio's selfdefense instruction could have been raised earlier, state collateral review of the claim was unavailable and the claim was therefore exhausted. 456 U.S. at 125 n. 28, 102 S.Ct. at 1570 n. 28. The situation here is analogous. The state court twice has ruled that White waived his present claims under Rule 32.2 by not raising them on direct appeal. State post-conviction review of these claims is therefore unavailable and the claims are exhausted.

II. Is a Motion to Dismiss a Proper Pleading?

White's main argument on appeal is that a motion to dismiss is not authorized by the rules governing 28 U.S.C. Sec. 2254. Rule 4 provides that unless it appears from the face of the petition that relief is unavailable,

the judge shall order the respondent to file an answer or other pleading within the time fixed by the court or to take such other action as the judge deems appropriate.

(Emphasis added.) Clearly, the rule allows for a response other than a formal answer meeting the dictates of Rule 5.

The Advisory Committee Note to Rule 4 specifically mentions a motion to dismiss:

For example, the judge may want to authorize the respondent to make a motion to dismiss based upon information furnished by respondent, which may show that petitioner's claims have already been decided on the merits in a federal court; that petitioner has failed to exhaust state remedies; that the petitioner is not in custody within the meaning of 28 U.S.C. Sec. 2254; or that a decision in the matter is pending in a state court. In these situations, a dismissal may be called for on procedural grounds, which may avoid the necessity of filing an answer on the substantive merits of the petition.

While state procedural default is not mentioned as a specific ground for such a motion, there is no reason for distinguishing it from other procedural grounds which may make a full answer unnecessary. This reading is consistent with the intention that the judge be given "flexibility" in dealing with habeas petitions. Advisory Committee Note to Rule 4.

The best textual support for White's argument comes from the Advisory Committee Note to Rule 5 which expresses some concern about unresponsive answers:

The answer must respond to the allegations of the petition.... [C]ourts occasionally receive answers which contain only a statement certifying the true cause of detention, or a series of delaying motions such as motions to dismiss. The requirement of the proposed rule that the "answer shall respond to the...