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rejecting a challenge to a ban that extended to pornographic writings
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Submitted November 16, 1998.
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Eastern District of Washington, Robert H. Whaley, District Judge, Presiding.
Before FARRIS, BRUNETTI, and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Washington state prisoner John Lawrence Robinson appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 petition challenging his conviction for first degree rape. We have jurisdiction pursuant to 28 U.S.C.§ 2253(a). We review de novo, see Fields v. Calderon, 125 F.3d 757, 759-60 (9th Cir.1997), cert. denied, 523 U.S. 1132, 118 S.Ct. 1826, 140 L.Ed.2d 962 (1998), and we affirm in part, and vacate in part and remand for further proceedings.
With regard to claims 12 and 22, Robinson contends that he is entitled to federal habeas relief because the state did not provide timely notice of its intent to introduce additional inculpatory evidence; claims 28 and 29 also challenge state discovery procedures. We reject the entirety of these claims because "there is no general constitutional right to discovery in a criminal case, and [Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ], which addressed only exculpatory evidence, did not create one." See Gray v. Netherland, 518 U.S. 152, 168, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (citation and internal quotation omitted).
The referenced claim numbers correspond both to Robinson's section 2254 petition and to the Magistrate Judge's Report and Recommendation of April 24, 1996.
Claims 1, 3, 4, 15 and 24 are unexhausted because Robinson never characterized them as federal constitutional claims during his state direct appeal proceedings, see Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (reaffirming that exhaustion of state remedies requires the petitioner to apprise the state court that he is alleging a federal constitutional violation), and Robinson is now precluded from doing so by Washington law, see Wash.Rev.Stat. § 10.73.090(1). Federal habeas review of these claims is barred due to Robinson's procedural default because he fails to demonstrate cause and prejudice, or that a fundamental miscarriage of justice will result if these claims are not considered. See Coleman v. Thompson, 501 U.S. 722, 731-32, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Noltie v. Peterson, 9 F.3d 802, 806 (9th Cir.1993).
Contrary to Robinson's contentions, his pro se status does not constitute cause, see Coleman v. Thompson, 501 U.S. 722, 755, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (stating that there is no right to counsel in state collateral proceedings), nor does it exempt him from the Supreme Court's holding in Duncan v. Henry, 513 U.S. 364, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam).
Robinson contends that he has not procedurally defaulted on his remaining claims, first raised in his Personal Restraint Petition ("PRP") challenging his rape conviction, because the state of Washington erred by invoking a state procedural bar. This contention has merit.
The Washington Court of Appeals denied Robinson's rape PRP as a successive petition because he had previously filed a PRP challenging a separate and unrelated conviction for kidnapping. The Washington Supreme Court denied discretionary review because Robinson failed to demonstrate good cause for not challenging his rape conviction in his earlier, kidnapping PRP. However, neither the statute, Wash.Rev.Stat. § 10.73.140, nor the cases cited by the Washington Supreme Court, In re Holmes, 121 Wash.2d 327, 849 P.2d 1221 (Wash.1993) (en banc), and In re Cook, 114 Wash.2d 802, 792 P.2d 506 (Wash.1990) (en banc), support the conclusion that a Washington state petitioner is limited to one PRP, irrespective of whether he sustained multiple and unrelated convictions. Nor does the Washington Supreme Court cite any rule, statute, or case law for the proposition that "given the appellate history of the two cases," Robinson should have raised his rape conviction claims in his kidnapping PRP. Because it appears that the procedural rule used to bar consideration of Robinson's rape PRP is neither firmly established nor regularly followed by the Washington courts, it does not bar federal review of Robinson's remaining claims. See Fields, 125 F.3d at 760-765.
The panel unanimously finds this case suitable for decision without oral argument.
Rather, In re Cook, 114 Wash.2d 802, 792 P.2d 506, 508 n. 1 (Wash.1990) (en banc), indicates that Washington law permits a petitioner to file separate PRPs for separate convictions.
The district court declined to consider these claims because Robinson never presented them to the Washington Supreme Court for review, as required by Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir.1992). The record does not support this conclusion. Robinson's motion for discretionary review urged the Washington Supreme Court to review the issues raised in his rape PRP in order to assess whether his PRP was in fact successive. Thus, Robinson's incorporation of his claims by reference was sufficient to fairly present these issues to the Washington Supreme Court. Accordingly, the district court's order dismissing claims 2, 5--11, 13, 14, 16-23, and 25-33 contained in Robinson's section 2254 petition is vacated and the case is remanded to the district court for further proceedings on those claims consistent with this disposition. See Fields, 125 F.3d at 765.
All motions currently pending are denied as moot.
AFFIRMED in part; VACATED and REMANDED in part.
See Fed. R.App. P. 34(a); 9th Cir. R. 34-4. Accordingly, we deny Robinson's motion for oral argument.