Harmon v. Ryan, No. 91-15139

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtREINHARDT
Citation959 F.2d 1457
Docket NumberNo. 91-15139
Decision Date23 July 1991
PartiesPhillip J. HARMON, Petitioner-Appellant, v. Charles RYAN, Warden, et al., Respondents-Appellees.

Page 1457

959 F.2d 1457
Phillip J. HARMON, Petitioner-Appellant,
v.
Charles RYAN, Warden, et al., Respondents-Appellees.
No. 91-15139.
United States Court of Appeals,
Ninth Circuit.
Submitted July 23, 1991 *.
Memorandum Filed July 26, 1991.
Order and Opinion Filed Sept. 20, 1991.
Opinion Withdrawn March 26, 1992.
Decided March 26, 1992.

Page 1459

Phillip J. Harmon, pro se.

No appearance for appellees.

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

Before: PREGERSON, D.W. NELSON, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

The roots of this appeal lie in Arizona v. Shattuck, 140 Ariz. 582, 684 P.2d 154 (1984). In Shattuck, the Arizona Supreme Court was presented with the question of what an appointed counsel's obligations are under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), with regard to seeking discretionary review in the state supreme court of issues he believes are frivolous. The Court noted that the Arizona judicial "system is strained to the point that we cannot afford the luxury of repeated review of trivia or issues of small merit." 684 P.2d at 157. It then held that appointed counsel had no obligation to seek review beyond that of right in the state intermediate appellate courts, stating that "[o]nce the defendant has been given the appeal to which he has a right, state remedies have been exhausted." Id. Although Shattuck involved the scope of exhaustion necessary under Anders, its reasoning was much broader; after Shattuck, a reasonable defendant would have believed that he need not seek direct review in the Arizona Supreme Court in order to exhaust his state remedies for purposes of federal habeas review. The Arizona Supreme Court confirmed that such was the import of Shattuck in Arizona v. Sandon, 161 Ariz. 157, 777 P.2d 220 (1989). In Sandon, that court said "[w]hile Shattuck involved a discussion of the role of counsel in cases appealed according to Anders, the considerations are the same when discretionary

Page 1460

review is sought in this Court pursuant to Rule 31.19 [governing review of court of appeals decisions affirming convictions].... When counsel, whether retained or appointed, has [exhausted his appeal as of right in the court of appeals], as counsel for Sandon did in this matter, the case in the Arizona courts is over." Id. 777 P.2d at 221. Sandon held that an Arizona prisoner who, in 1986, had not sought state supreme court review after his conviction was affirmed by the state court of appeals had nonetheless exhausted his state remedies for purposes of federal habeas review. See id.

Subsequently, we concluded that the Arizona Supreme Court was wrong. In Jennison v. Goldsmith, 940 F.2d 1308 (9th Cir.1991), we pointed out that the exhaustion requirements of 28 U.S.C. § 2254 are a matter of federal law and then went on to hold that, because Arizona defendants were able to seek direct review in the state supreme court, they must do so in order to exhaust their claims. See 940 F.2d at 1311. As a result of Jennison, Arizona prisoners who, following Shattuck, had every reason to believe that they had properly exhausted their claims by obtaining direct review in the state's intermediate appellate courts, suddenly discovered that their claims were in fact not properly exhausted.

Phillip J. Harmon, the petitioner in this action, is just such an Arizona prisoner. In 1988, Harmon entered an Alford guilty plea to a charge of attempted kidnapping and was sentenced to five years probation. In 1989, he admitted that he had violated the terms of his probation and was sentenced to a ten-year term of imprisonment. He appealed to the Arizona Court of Appeals, which affirmed the trial court, but he did not seek review in the Arizona Supreme Court. The court of appeals then issued its mandate, stating that "no motion for reconsideration or petition for review was filed, and time has expired." Approximately a year later, however, Harmon filed a petition for special action in the Arizona Supreme Court. The Court dismissed the petition.

Harmon then filed a habeas petition in federal court, alleging that his plea was coerced, the sentencing judge was biased, and there was no factual basis for finding that he had violated the terms of his probation. 1 The district court noted that his claims had not been presented to the Arizona Supreme Court on direct review and that that court's rejection of his special action petition did not constitute a consideration of his claims on the merits. The district court then held that the petitioner had not properly exhausted his claims under § 2254, and therefore ordered the petition dismissed sua sponte. Harmon timely appealed.

It is clear that Harmon's claims are exhausted. The exhaustion requirement may be satisfied in two ways: by showing either that no state remedies are available or that the state supreme court has been presented with a fair opportunity to rule on the merits of the claim. Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir.1982), cert. denied, 463 U.S. 1212, 103 S.Ct. 3547, 77 L.Ed.2d 1395 (1983). Harmon is no longer able to seek direct review in the state supreme court and failed to obtain review on the merits through state collateral relief; no additional state remedies remain open to him. See Tacho v. Martinez, 862 F.2d 1376, 1379-80 (9th Cir.1988). As a result, his claims are exhausted. See Batchelor, 693 F.2d at 863 (holding that the petitioner's claims were exhausted because "[t]he time for seeking review of the judgment of the Oregon Court of Appeals had long since lapsed and

Page 1461

state post-conviction relief was unavailable"). 2

Although Harmon's claims are exhausted, they are not properly exhausted. Where direct review is available in the state's highest court, failure to seek such review constitutes a procedural default even if review was afforded in the state's lower courts. See Jennison, 940 F.2d at 1311; McNeeley v. Arave, 842 F.2d 230, 231-32 (9th Cir.1988). Thus, the petitioner's claims are in procedural default.

The doctrine of procedural default is based on comity, not jurisdiction, and the federal courts retain the power to consider the merits of procedurally defaulted claims. See Reed v. Ross, 468 U.S. 1, 9, 104 S.Ct. 2901, 2906, 82 L.Ed.2d 1 (1984). As a general matter, a procedurally defaulted claim will not be considered on a writ of habeas corpus without a finding of "cause and actual prejudice" for the default. See id. at 11, 104 S.Ct. at 2908. However, a federal court will not require a habeas petitioner to demonstrate cause and prejudice unless the procedural default is independent of the federal claim and is adequate to warrant withdrawal of federal relief. See Harris v. Reed,...

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81 practice notes
  • Olesen v. Class, No. Civil 95-3014.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • January 17, 1997
    ...his failure to demonstrate cause and prejudice; in such case, the court may entertain the habeas petition." Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir.1992); see also, Coleman, 501 U.S. at 729-35, 111 S.Ct. at At issue here are two potentially viable procedural defaults: the failure to ob......
  • Williams v. Calderon, No. CV 89-0327 SVW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 25, 1998
    ...not jurisdiction, and the federal courts retain the power to consider the merits of procedurally defaulted claims." Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir.1992). However, petitioner must "show cause for the default and prejudice attributable thereto, or demonstrate that the failure to......
  • Odle v. Calderon, No. C-88-4280-CAL.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 29, 1995
    ...state fails to assert an interest in compliance with its procedural rules in the petitioner's federal habeas proceedings. Harmon v. Ryan, 959 F.2d 1457, 1461 (9th (1) Reliance on State Procedural Rules A federal habeas court may review a claim on the merits unless the state court made a "`c......
  • Gallego, In re, No. S042737
    • United States
    • United States State Supreme Court (California)
    • August 3, 1998
    ...p. 587, 108 S.Ct. 1981; see, e.g., Ford v. Georgia, supra, 498 U.S. at pp. 423-424, 111 S.Ct. 850; see also Harmon v. Ryan (9th Cir.1992) 959 F.2d 1457, 1461 ["The doctrine of procedural default is based on comity, not jurisdiction, and the federal courts retain the power to consider the me......
  • Request a trial to view additional results
81 cases
  • Olesen v. Class, No. Civil 95-3014.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • January 17, 1997
    ...his failure to demonstrate cause and prejudice; in such case, the court may entertain the habeas petition." Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir.1992); see also, Coleman, 501 U.S. at 729-35, 111 S.Ct. at At issue here are two potentially viable procedural defaults: the failure to ob......
  • Williams v. Calderon, No. CV 89-0327 SVW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 25, 1998
    ...not jurisdiction, and the federal courts retain the power to consider the merits of procedurally defaulted claims." Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir.1992). However, petitioner must "show cause for the default and prejudice attributable thereto, or demonstrate that the failure to......
  • Odle v. Calderon, No. C-88-4280-CAL.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 29, 1995
    ...state fails to assert an interest in compliance with its procedural rules in the petitioner's federal habeas proceedings. Harmon v. Ryan, 959 F.2d 1457, 1461 (9th (1) Reliance on State Procedural Rules A federal habeas court may review a claim on the merits unless the state court made a "`c......
  • Gallego, In re, No. S042737
    • United States
    • United States State Supreme Court (California)
    • August 3, 1998
    ...p. 587, 108 S.Ct. 1981; see, e.g., Ford v. Georgia, supra, 498 U.S. at pp. 423-424, 111 S.Ct. 850; see also Harmon v. Ryan (9th Cir.1992) 959 F.2d 1457, 1461 ["The doctrine of procedural default is based on comity, not jurisdiction, and the federal courts retain the power to consider the me......
  • Request a trial to view additional results

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