914 F2d 261 Black v. McCormick
914 F.2d 261
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Delmar BLACK, Petitioner/Appellant,
v.
Jack McCORMICK, Warden of Montana State Prison, Respondent/Appellee.
NO. 90-35245.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 13, 1990.*
Decided Sept. 19, 1990.
Before EUGENE A. WRIGHT, SCHROEDER and WILLIAM A. NORRIS, Circuit Judges.
MEMORANDUM**
Appellant Delmar Black appeals the denial of his petition for a writ of habeas corpus. Appellant's petition before the district court claimed, inter alia, that the twenty-two month delay between his request for court-appointed counsel to aid him in the appeal of his criminal conviction deprived him of due process, as did the state's refusal to provide him with transcripts of every proceeding involving his case. Noting that the state had in the meantime appointed counsel, and that his appeal had been fully briefed and was pending before the Montana Supreme Court, the district court denied the writ, holding that appellant was required to exhaust all state judicial remedies before petitioning the federal court. We affirm.
On February 8, 1988, appellant, through his counsel,1 pled guilty as part of a plea bargain agreement to a state charge of simple assault (Mont. Code Ann. Sec. 45-5-201(1)(a)(3)). There followed a series of procedural maneuvers which we will only summarize here.
On March 15, 1988, appellant filed a notice of appeal, and a motion for appointment of counsel. Appellant made this latter motion as he intended to press a claim of ineffective assistance of counsel. The Montana Supreme Court treated the ineffective assistance claim as a petition for post-conviction relief. That court read Montana law as not requiring court-appointed counsel for such petitions, and accordingly refused to appoint counsel for appellant. It did, however, mandate an evidentiary hearing on appellant's ineffective assistance claim, following which a lower Montana court rejected appellant's claim.
Sometime after the August evidentiary hearing appellant renewed his request for appointment of counsel. His motion was denied on October 6, 1988. On November 11, appellant filed the above-noted habeas petition with the United States District Court for the District of Montana. On October 30, 1989, the federal magistrate asked the state prosecutor to inform the district court of the status of petitioner's appeal within the state system, pointing out that petitioner had the right to counsel for his appeal. The state responded that petitioner's appeal was still pending, and recommended to the state supreme court that counsel be appointed for the appellant. The state supreme court then took steps to do so. After this flurry of activity the federal magistrate recommended that the habeas petition be denied for failure to exhaust state remedies. On December 11, 1989 counsel was appointed, and on February 13, 1990 appellant's federal habeas petition was dismissed for failure to exhaust state judicial remedies.
At present appellant has state-appointed counsel, who has filed a brief with the Montana Supreme Court challenging appellant's conviction on a number of grounds. The state has also filed a brief, and the matter is now pending before that court.
The issue before our court is the propriety of the district judge's dismissal of appellant's habeas petition. Appellant argues that the delay in the disposition of his case should exempt him from the normal requirement that a federal habeas petitioner exhaust all state remedies before seeking federal habeas relief. He also argues that the delay in the appointment of counsel has denied him due process of law and equal protection. Finally, he argues that the state's failure to provide free transcripts of every proceeding in this case again denied him due process and equal protection. Because we agree with the district court that exhaustion of state remedies was required, we do not reach these latter two substantive issues.
Our circuit has interpreted subsections (b) and (c) of 28 U.S.C. Sec. 2254, the federal habeas statute, generally to preclude federal review of a state prisoner's habeas petition unless the petitioner has exhausted available remedies in state courts, including direct appeal and collateral proceedings. Lindquist v. Gardner, 770 F.2d 876, 877 (9th Cir.1985).
We decline to deviate from our rule in this case. We base our holding on our observation that substantial progress is now being made on petitioner's state appeal. As our court noted in an analogous situation: "[w]hen ... an appeal of a state criminal conviction is pending a would-be habeas corpus petitioner must await the outcome of his appeal before his state remedies are exhausted, even where the issue to be challenged in the writ of habeas corpus has been finally settled in the state courts." Sherwood v. Tomkins, 716 F.2d, 632, 634 (9th Cir.1983).2
Simply put, both comity and efficiency counsel that federal courts should not interfere when a pending state appeal may resolve the entire issue. Should petitioner lose his appeal and exhaust all other state remedies, he will be able then to petition the federal court for relief. For now, however, we AFFIRM the district court's holding that appellant's habeas petition must be dismissed pending exhaustion of all available state remedies.3 See Daniels v. Nelson, 415 F.2d 323 (9th Cir.), cert. denied, 396 U.S. 994 (1969) (requiring exhaustion of state remedies before habeas writ will issue).
Because of our holding, we DENY appellee's motion to submit an appendix to the record before us.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 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 Ninth Circuit Rule 36-3
Appellant claims that this attorney was never formally appointed as his counsel. As we do not reach the merits of his claims, we express no view on this question
Appellant argues that exhaustion is inappropriate when, as here, the state refused to grant him his rights (here, to counsel on appeal) until the federal court intervened. Appellant's Brief at 24-25. However, he is unable to cite persuasive authority for this proposition. The only case he mentions, Rivera v. Concepcion, 469 F.2d 17 (1st Cir.1972), does not even deal with exhaustion. (In fact, the habeas petitioners in that case were explicitly found to have exhausted all state remedies, 469 F.2d at 18.) Indeed, that same court later required exhaustion in a case more egregious than ours. In Layne v. Gunter, 559 F.2d 850 (1st Cir.1977), cert. denied, 434 U.S. 1038 (1978), the court implied its approval of the district court's holding that a delay in the processing of a habeas petitioner's appeal had violated due process, but nevertheless affirmed the district court's refusal to issue the writ when the appellate proceedings were "back on track." 559 F.2d at 851. By so refusing even after favorably noting the finding that due process had been violated, the Layne court went even farther than our circuit has countenanced. We, of course, do not reach the issue of whether exhaustion should be required after a holding that a delay did constitute a denial of due process
Petitioner makes much of the fact that he calculates the delay in his case as approaching two years, and that, again by his calculation, he has already served almost 90% of his anticipated incarceration. We sympathize, but note that he has embarked on four different avenues of relief: an appeal of his conviction, an ineffective assistance of counsel claim, a state habeas petition, and the federal habeas petition discussed in this opinion. The prosecution of these various claims takes time, especially to the extent that progress on one claim must be delayed in deference to resolving another