64 F3d 669 Maestas v. Utah State Board of Pardons

64 F.3d 669

Harry MAESTAS, Petitioner-Appellant,
v.
UTAH STATE BOARD OF PARDONS; H.L. Pete Haun, Chairman of
the Board of Pardons; and John Sullivan, Warden,
Lompoc Federal Penitentiary,
Respondents-Appellees.

No. 94-4240.
(D.C.No. 92-CV-409).

United States Court of Appeals, Tenth Circuit.

Aug. 25, 1995.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before MOORE, SETH and EBEL, Circuit Judges.

ORDER AND JUDGMENT1

1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

Petitioner-Appellant Harry Maestas appeals the district court's order dismissing his petition for a writ of habeas corpus on the ground that he failed to exhaust available state remedies. Because Mr. Maestas has not presented the substance of his claims to the Utah appellate courts, we affirm.

3

Mr. Maestas has been convicted of multiple felonies in Utah, and is serving a number of indeterminate sentences. In October 1987, he was released on parole. In January 1988, he was arrested and tried in federal court for possession of cocaine and marijuana with intent to distribute, and for possession of a firearm by a felon. Although he was acquitted on the charges, the Board of Pardons (Board) issued a warrant for Mr. Maestas' arrest based on his participation in the same crimes. After a hearing, the Board revoked Mr. Maestas' parole and set his rehearing date for January 2008.

4

In January 1990, Mr. Maestas filed a petition for a writ of habeas corpus in state court, claiming that (1) revoking his parole based on charges for which he had been acquitted violated the double jeopardy clause; (2) the twenty-year rehearing date was excessive and violated the Eighth Amendment; and (3) the Board's lack of impartiality and its reliance on recorded statements made by Mr. Maestas without Miranda warnings violated his right to due process of law. The state court denied these claims on the merits, finding that Mr. Maestas' claims regarding asserted due process violations, alleged excessive punishment, and double jeopardy based upon revocation of parole despite acquittal of the underlying offense, were without merit. Mr. Maestas did not appeal.

5

Instead, Mr. Maestas filed a second state habeas petition in July 1991, claiming that the Board violated his right to due process by relying on the crimes for which he had been acquitted, and that the Board's decision was an abuse of discretion. The district court dismissed the second petition on the ground that it was untimely, relying on a ninety-day limitation provided in Utah Code Ann. 78-12-31.1 (1991). Mr. Maestas appealed the dismissal, but later withdrew his appeal. This statute has since been held unconstitutional.

6

Mr. Maestas filed his federal petition for habeas relief, alleging that: (1) the Board's revocation of parole and setting of a twenty-year review date, based on crimes for which he had been acquitted in federal court, violated due process; (2) the Board's determination was arbitrary, capricious, and without factual support, and therefore deprived him of due process; (3) the Board's failure to give him a preliminary revocation hearing violated due process; (4) the Board's failure to notify him of his right to appeal denied him access to the courts; (5) the Board's failure to give him an opportunity to present evidence violated due process; (6) the harshness of the twenty-year review date violated his due process and Eighth Amendment rights; (7) the five-month delay before his revocation hearing deprived him of due process; and (8) the Board's failure to give its reasons for revoking his parole deprived him of due process.

7

The state moved first to dismiss the petition based on Mr. Maestas' failure to exhaust his claims, and later, for denial of the petition based on procedural bar. The magistrate judge recommended that Mr. Maestas' claims be deemed exhausted because he was acting pro se and the constitutionality of the statute of limitations was a complex legal issue. Finding that the state had waived the procedural bar defense, the magistrate judge determined the merits of Mr. Maestas' claims.

8

The district court declined to adopt the magistrate judge's recommendation, holding instead that Mr. Maestas' pro se status did not excuse his failure to exhaust state remedies. The court dismissed the habeas petition for lack of exhaustion and this appeal followed. We review the district court's legal conclusions in a habeas proceeding de novo. See Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th Cir.1993).

9

A state prisoner must of course exhaust available state remedies before a federal court will consider his claims on habeas review. Picard v. Connor, 404 U.S. 270, 275 (1971); 28 U.S.C. 2254(b). The exhaustion requirement is satisfied by presenting the substance of the habeas claims to the state's highest court. See id. at 275-76; Dulin v. Cook, 957 F.2d 758, 759 (10th Cir.1992). There is no waiver of the exhaustion requirement in district court. See Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir.1994).

10

After careful review of the briefs, the state and federal district court determinations, and the record on appeal, we conclude that the district court properly determined that Mr. Maestas' failure to exhaust state remedies is dispositive of his petition.

11

The judgment of the United States District Court for the District of Utah is AFFIRMED, and the mandate shall issue forthwith.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470