FILED
NOT FOR PUBLICATION FEB 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
FRED LAWRENCE ROBINSON, No. 05-99007
Petitioner - Appellant, D.C. No. CV-96-00669-JAT
v.
MEMORANDUM *
DORA B. SCHRIRO, Director,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued December 6, 2007
Submitted February 22, 2010
San Francisco, California
Before: B. FLETCHER, BERZON and RAWLINSON, Circuit Judges.
Petitioner Fred Lawrence Robinson appeals the district court's denial of his
petition for habeas corpus. We grant his petition in an opinion filed
contemporaneously with this memorandum. In this memorandum we address
Robinson's remaining claims.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
A. Claim 1
Robinson contends that he was denied the effective assistance of counsel at
trial because counsel labored under an actual conflict of interest that Robinson
never personally waived and that adversely affected counsel's performance. The
district court held that this claim was procedurally barred because Robinson had
not exhausted it in state court. Robinson concedes that he did not raise this claim
in any state court appellate or post-conviction proceeding, but he argues Rule
32.2(a)(3) of the Arizona Rules of Criminal Procedure, which requires a µnowing,
voluntary, and intelligent waiver for claims 'of sufficient constitutional
magnitude,' applies to his failure to exhaust.
A claim is procedurally barred if it was fairly presented in the state court and
dismissed on procedural grounds or if it was not fairly presented and the petitioner
would now be barred under state procedural rules from raising it in state court. In
order for a claim to be fairly presented, it must be apparent to the state court that
the petitioner is raising a federal claim. Picard v. Connor, 404 U.S. 270, 275-77
(1971); Lyons v. Crawford,
232 F.3d 666, 668 (9th Cir. 2000) amended by
247
F.3d 904 (2001).
The Supreme Court has held that Arizona state court determinations that a
claim is waived under Rule 32.2(a)(3) are independent of federal law because they
2
do not depend on a federal constitutional ruling on the merits. See Stewart v.
Smith, 536 U.S. 856, 860 (2002). Here, in ruling on Robinson's Second Petition
for Post-Conviction Relief, the Yuma County Superior Court declined to address
the merits of Robinson's conflict of interest claim, holding that Robinson had
waived the claim by failing to raise it on direct appeal or in a previous collateral
proceeding. [SSER 49.] In so holding, the court relied on Rule 32.2(a)(3).
Robinson's claim is therefore procedurally barred.
Robinson additionally argues that Arizona fundamental error review
exhausted the claim and prevents procedural bar. A claim is not exhausted for
federal exhaustion purposes by Arizona's fundamental error review unless it was
actually presented to or actually considered by the Arizona appellate court. See
Moorman v. Schriro, 426 F.3d 1044, 1057 (9th Cir. 2005). As Robinson did not
raise this claim to, and it was not addressed by, the Arizona Supreme Court on
direct appeal, it is not exhausted by Arizona fundamental error review.
Robinson's assertion of ineffective assistance of counsel in his first post-
conviction petition may not excuse his failure to raise the claim, because there is
no constitutional right to counsel in state post-conviction proceedings. See
Coleman v. Thompson, 501 U.S. 722, 752-54 (1991).
3
B. Claim 2
Robinson claims that his due process rights were violated when the trial
court refused to instruct the jury on the lesser included offense of second degree
murder. The district court held that Claim 2 was procedurally barred because
Robinson had not exhausted it in state court. Robinson concedes that he failed to
include his claim in his opening brief on direct appeal. However, he argues the
claim was exhausted by Arizona's fundamental error review. The Arizona
Supreme Court did not address Claim 2 on direct appeal. We hold, therefore, that
Claim 2 was not exhausted by Arizona fundamental error review. See Moorman,
426 F.3d at 1057 . Nor did the Yuma County Superior Court determine that Claim
2 implicated a right requiring personal waiver under Arizona Criminal Procedure
Rule 32.2(a)(3). See Stewart,
536 U.S. at 860. [SSER 49.] The claim is, therefore,
procedurally barred.
Robinson argues his failure to raise Claim 2 should be excused because
raising it on direct appeal was futile in light of State v. LaGrand, 734 P.2d 563,
572 (Ariz. 1987). However, even were we to accept futility as an excuse, to the
extent Claim 2 is analogous to the claim rejected in LeGrand, it is meritless. See
Hopµins v. Reeves,
524 U.S. 88, 96-98 (1998).
4
C. Claim 3
Robinson contends that Arizona's procurement through payment or promise
of anything of pecuniary value aggravating circumstance violates due process and
is unconstitutionally vague because it provided no notice that 'procurement of a
burglary during which a murder occurred would subject a person to the death
penalty.' [Blue Br. At 58.] The district court held that Claim 3 was procedurally
barred. Robinson concedes that he never raised this claim in state court, but argues
that the claim was nonetheless exhausted by the independent review the Arizona
Supreme Court conducts in all death penalty cases to determine whether the
aggravating and mitigating circumstances were properly found and weighed. See
State v. Fierro, 804 P.2d 72, 81 (Ariz. 1990). We do not find that the Arizona
Supreme Court's independent review exhausted Robinson's claim. See Moorman,
426 F.3d at 1057-58. We also do not find the claim was exhausted by fundamental
error review as it was not addressed by the Arizona Supreme Court.
Id. at 1057.
Nor did the Yuma Superior Court determine that Claim 3 implicated a right
requiring personal waiver under Arizona Criminal Procedure Rule 32.2(a)(3). See
Stewart,
536 U.S. at 860. [SSER 49.] The claim is, therefore, barred.
D. Claim 4
5
Robinson contends that the prosecution violated due process when it argued
pre-trial that the motive for the murder was to find Robinson's estranged common-
law wife, then argued at sentencing that the motive for the murder was pecuniary
gain. The district court held that Claim 4 was procedurally barred because
Robinson did not allege on direct appeal to the Arizona Supreme Court that the
state engaged in prosecutorial misconduct or violated his due process rights by its
assertion of inconsistent theories and because these claims were substantively
different from the challenges to the applicability of the pecuniary gain aggravating
circumstances that were presented to the Arizona Supreme Court. We agree that
Robinson did not fairly present his claim to the Arizona Supreme Court that his
federal constitutional rights were violated by the inconsistent theories or
prosecutorial misconduct. See Picard, 404 U.S. at 275-77; Crawford,
232 F.3d at
668. Nor was the claim exhausted by Arizona's fundamental error review as it was
not actually presented to or considered by the Arizona appellate court. See
Moorman,
426 F.3d at 1057. We also conclude that the Yuma County Superior
Court did not determine that Claim 4 implicated a right requiring personal waiver
under Arizona Criminal Procedure Rule 32.2(a)(3). See Stewart,
536 U.S. at 860.
[SSER 50.] Claim 4 is, therefore, procedurally barred.
6
Robinson has not demonstrated cause and prejudice arising from ineffective
assistance because his claim of ineffective assistance on appeal is similarly barred.
See Edwards v. Carpenter, 529 U.S. 446, 452-54 (2000).
E. Claim 5
Robinson contends that the Arizona Supreme Court failed to reweigh
properly or to conduct a harmless error review of the remaining aggravating factors
after it invalidated the sentencing court's application of the pecuniary gain
aggravating factor. The district court held that Claim 5 was unexhausted as
Robinson had failed to raise it in his state-court post-conviction proceedings.
Because we remand Robinson's case for a new sentencing hearing in our
companion opinion, we do not reach Claim 5.
AFFIRMED.
7
FILED
Robinson v. Schriro, Case No. 05-99007 FEB 22 2010
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
I concur in the denial of Claims 1 through 4 and would also deny Claim 5.
