Free Mandate of 9th Circuit - District Court of Arizona - Arizona

UNITED STATES COURT OF APPEALS
POR THE NINTH CIRCUIT
WILLIE LEE PARKER, No. 05-17232
D.C. No. CV-03-01788-JAT/CRP
Petitioner — Appellant,
v.
JUDGMENT ·
WILLIAM S.-GASPAR;—et al., - - ·
Respondents - Appellees.
Appeal from the United States District Court for the District of Arizona
(Phoenix).
This cause came on to be heard on the Transcript of the Record from the
United States District Court for the District of Arizona (Phoenix) and was duly
submitted.
On consideration whereof, it is now here ordered and adjudged by this
l Court, that the judgment of the said District Court in this cause be, and hereby is
0 AFFIRMED.
Filed and entered 07/26/06
A TRUE COPY N I
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3 A Q g s.
A FILED
I NOT FOR PUBLICATION
JUL 26 2006
UNITED STATES COURT OF APPEALS CATHY A. c/rrrznson c|.ERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIE LEE PARKER, No. 05-17232
l Petitioner - Appellant, D.C. No. C\/-03-01788-JAT/CRP
v.
MEMoRANDUM*
WILLIAM S. GASPAR; ARIZONA
ATTORNEY GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
submitted Juiy 24, 2006 ** A
Before: ALARCON, HAWKINS, and THOMAS, Circuit Judges.
Arizona state prisoner Willie Lee Parker appeals pro se from the district
court’s judgment dismissing his habeas petition under 28 U.S.C. § 2254 for
procedural default and on the merits. Parker was convicted of misconduct
* This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
H The panel unanimously finds this case suitable for decision without J
oral argument. See Fed. R. App. P. 34(a)(2).
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` W W} W
involving weapons and received a ten-year sentence. We review de novo a district
court’s conclusions regarding procedural default. Grwin v. Johnson, 350 F.3d
956, 960 (9th Cir. 2003). We also review de novo a district court’s denial of
habeas reliefi Beczrdslee v. Woodford, 358 F.3d 560, 568 (9th Cir. 2004). We
1 affirm. n
Parker first contends that his trial counsel was ineffective for failing to
investigate his mental health background. The state—court record reflects that the
first and only time Parker presented this claim to the Arizona courts was in a
petition for review to the Arizona Supreme Court. Thus, he did not properly
exhaust it. See Casey v. Moore, 386 F.3d 896, 916-18 (9th Cir. 2004) (holding
that a state prisoner had not exhausted his claims by presenting them for the first
and only time in a petition for discretionary review with the state’s highest court);
accord Castille v. Peoples, 489 U.S. 346, 351 (1989). .
Parker also contends that trial counsel was ineffective for failing to object to
the presentence report. The state—court record reflects, however, that Parker never _
presented both the factual and legal bases of this claim to the Arizona courts.
Accordingly, this claim is also unexhausted. See Kelly v. Small, 315 F.3d 1063,
1068 & n.2 (9th Cir. 2003) (requiring exhaustion in state court of the factual bases
of each distinct ineffective-assistance claim).
2
1 Case 2:03-cv-01788—JAT—CFiP Document 43 Filed 08/25/2006 Page 3 of 4

The Arizona courts would find these claims procedurally barred if Parker
were to try and exhaust them now. See Ariz. R. Crim. P. 32.2(a)(3). The district
court therefore correctly concluded that both of them were procedurally defaulted.
See Stewart v. Smith, 536 U.S. 856, 861 (2002) (per curiam); Beaty v. Stewart, 303
F.3d 975, 987 & n.5 (9th Cir. 2002). Moreover, Parker has not shown cause to
excuse the procedural default of either of these claims. See T acho v. Martinez, _
862 F.2d 1376, 1381 (9th Cir. 1988) (pro se status is not cause). A
Finally, Parker contends that trial counsel was ineffective for failing to
request a mitigation hearing. The district court properly rejected this claim on the
merits. The Arizona courts specifically found that defense counsel made an
"impassioned plea" on Parker’s behalf at sentencing, and as a result the sentencing
judge imposed a presumptive sentence rather than an aggravated one. Parker has
not shown how introducing any other information at a formal mitigation hearing
might have persuaded the judge to impose a lesser sentence. Accordingly, we
reject his claim of ineffective assistance. See Strickland v. Washington, 466 U.S.
668, 697 (1984); Young v. Runnels, 435 F.3d 1038, 1043-44 (9th Cir. 2006)
(rejecting a claim of ineffective assistance because the petitioner could not show
prejudice, without regard to any alleged deficient performance).
AFFIRMED. A mus <:0r>v `
CATHY A. CATTERSON .
Clerk of Court
Arrest
3
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