925 F. 2d 1469 - Caryl v. McCormick

MEMORANDUM**

Roger Caryl was convicted in Montana state court of two counts of first degree murder and one count of first degree assault in 1974. Caryl appealed his convictions to the Montana Supreme Court and the court affirmed in 1975. A petition for post conviction relief was filed in Montana district court in March 1982. The petition raised numerous issues including error under Sandstrom v. Montana, 442 U.S. 510 (1979).1 The petition was denied by the state district court in January 1984. No appeal was taken from that decision.

In August 1988 Caryl filed a habeas corpus petition in federal district court which raised, among other issues, the Sandstrom error. In February 1989 the court dismissed the petition without prejudice because Caryl had failed to exhaust his Sandstrom claim in state court (i.e., he failed to appeal from the denial of his petition by the state district court).

Caryl filed a Petition for Post-conviction Hearing in the Montana Supreme Court in January 1989, raising the Sandstrom error before the state high court for the first time. The supreme court found that it lacked jurisdiction to hear the case because of a Montana Statute, Mont.Code.Ann Sec. 46-21-102, requiring that a petitions for post conviction relief be filed within five years from the date of conviction.

In May 1989, Caryl filed a second habeas corpus petition in federal district court, now asserting that his state court remedies had been exhausted and once again raising Sandstrom error. The court held that by failing to appeal the Sandstrom issue originally, Caryl was guilty of procedural default and as such waived his right to raise this issue in the habeas petition. The court decided that Caryl had not demonstrated sufficient cause for his state procedural default to warrant relief under Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905 (9th Cir.1986); and that the application of the Montana state law requiring the filing of post conviction petitions within five years from the date of convictions to Caryl did not violate the constitutional prohibition against ex post facto laws. The district court dismissed the petition for waiver as a result of procedural default. Caryl appeals from that decision. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm.

We review a decision denying a petition for habeas corpus de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir.1989).

A habeas petitioner may waive a constitutional claim by failing to present it for resolution to the highest state court. Jackson v. Cupp, 693 F.2d 867, 869 (9th Cir.1982). When the petitioner has not complied with reasonable state procedures, and the state's highest court has not been given the opportunity to resolve the merits of the petitioner's constitutional claim, we may, as a matter of comity, decline to reach the merits.

Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 906 (9th Cir.1986). In Hughes we also held that to overcome a state court procedural default the petitioner must show cause and actual prejudice. Id.

By failing to appeal the denial of his first petition for post conviction relief, Caryl waived his right to be heard on this issue in federal court, unless he can demonstrate cause for failing to bring the state appeal and actual prejudice. Caryl makes no argument that he had cause for failing to pursue the state appeal merely because his jailhouse lawyer did not advise him of his right to appeal. This court has rejected an assertion of cause in a case with similar facts as exist here, id. at 907, and Caryl has waived his right to be heard in federal court.

After his first habeas petition was dismissed, Caryl filed a petition for post-hearing review in the Montana Supreme Court. That court dismissed the petition for lack of jurisdiction because Montana law requires that post conviction petitions be filed within five years of the date of conviction. Appellant argues that the five year limitation was imposed after his conviction2 and that retroactive application of that statute to his state court appeal is a violation the ex post facto clause contained in article I, section 10 of the federal constitution.

Caryl's argument fails because the Supreme Court has held that "[e]ven though it may work to the disadvantage of a defendant, a procedural change is not ex post facto. " Dobbert v. Florida, 432 U.S. 282, 293 (1977), reh'g denied, 434 U.S. 882 (1977). The Supreme Court also has stated that "[N]o ex post facto violation occurs if the change effected is merely procedural, and 'does not increase the punishment nor change the ingredients of the offense or the ultimate fact necessary to establish guilt." Weaver v. Graham, 450 U.S. 24, 29 n. 12 (1980) (quoting Hopt v. Utah, 110 U.S. 574, 590 (1884)).

The change effected by Mont.Code Ann. Sec. 46-21-102 was to the procedure governing post conviction petitions. It had no effect on Caryl's substantive rights. See Weaver 450 U.S. at 29. The ex post facto argument is therefore inapposite.

AFFIRMED.