862 F2d 318 Harold Lapier v. Henry Risley, Warden

862 F.2d 318

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Harold LaPIER, Plaintiff-Appellant,
v.
Henry RISLEY, Warden, Defendant-Appellee.

No. 86-3976.

United States Court of Appeals, Ninth Circuit.

Submitted* Sept. 12, 1988.
Decided Nov. 2, 1988.

Before EUGENE A. WRIGHT, WALLACE and HUG, Circuit Judges.

MEMORANDUM

1

LaPier, a Montana state prisoner, appeals from the district court's dismissal, based on procedural default, of his 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus. LaPier contends that the district court erred in applying Mont.Code Ann. Sec. 46-21-105 (1987) to bar his claim because he satisfies an exception to the section 105 procedural bar.

2

We independently review the district court's denial of habeas corpus relief. Tatum v. Christensen, 786 F.2d 959, 963 (9th Cir.1986) (per curiam).

3

We may decline a review of the merits when the petitioner has not followed reasonable state procedures and thus has not given the state's highest court the opportunity to resolve the merits. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir.1986). Montana law provides a convicted prisoner who has not exhausted his remedy of appeal with two avenues of relief: a petition for post-conviction relief under Mont.Code Ann. Sec. 46-21-101 (1987), and a petition for a writ of habeas corpus under Mont.Code Ann. Sec. 46-22-101 (1987). In his state habeas action under Chapter 22, LaPier claimed his counsel was constitutionally ineffective in failing to challenge his prior convictions. Although he claimed ineffective assistance in his earlier Chapter 21 action, it was based on a different challenge. Montana Code Annotated Sec. 46-21-105 (1987) provides that "[a]ll grounds for relief claimed by a petitioner under this chapter must be raised in his original or amended petition" (emphasis added). A petitioner waives any grounds not raised, unless the court "finds grounds for relief ... which could not reasonably have been raised in the original ... petition." Mont.Code Ann. Sec. 46-21-105.

4

A state's interpretation of its own statute provides no basis for federal habeas relief absent arbitrary or discriminatory action. Engle v. Isaac, 456 U.S. 107, 121 n. 21 (1982). The Montana state court applies its procedural default statute to any successive petition, regardless of its label. See Alexander v. Risley, 644 F.Supp. 309, 311 (D.Mont.1986); McKenzie v. Osborne, 195 Mont. 26, 640 P.2d 368, 373 (1981). The Montana court did not act arbitrarily in applying Mont.Code Ann. Sec. 46-21-105 to LaPier's claim.

5

When a petitioner who has failed to comply with a state rule of procedure seeks federal review, he must show adequate cause for and actual prejudice from his noncompliance. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Reed v. Ross, 468 U.S. 1, 10-11 (1984) (cause and prejudice standard applies to state procedural defaults at the appellate level); Matias v. Oshiro, 683 F.2d 318, 321 n. 3 (9th Cir.1982) (standard applies to procedural waivers in state post-conviction proceedings). The "cause and prejudice" standard applies equally to pro se litigants. Hughes, 800 F.2d at 908. The defendant bears the burden of showing "cause." Sykes, 433 U.S. at 91; Garrison v. McCarthy, 653 F.2d 374, 377 (9th Cir.1981).

6

Under Sykes, LaPier must show "cause" for his failure to comply with the state procedural requirement that all claims for post-conviction relief be included in the initial petition; i.e. he must show cause for his own failure to include the persistent felony allegation in the original petition to the Montana Supreme Court. LaPier has not offered any legally sufficient explanation for that failure. The district court therefore correctly held that LaPier has failed to meet that burden.

7

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4