FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES MORRISON,
Petitioner-Appellant, No. 03-35161
v.
D.C. No.
CV-99-00151-RWA
MICHAEL MAHONEY, Warden,
Montana State Prison, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Montana
Richard W. Anderson, Magistrate Judge, Presiding
Argued and Submitted
August 2, 2004—Seattle, Washington
Filed February 23, 2005
Before: Cynthia Holcomb Hall, Andrew J. Kleinfeld, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
2139
MORRISON v. MAHONEY 2141
COUNSEL
Michael Donahue, Esq., Assistant Federal Defender, Helena,
Montana, for the defendant-appellant.
Carol E. Schmidt, Esq., Assistant Attorney General, Helena,
Montana, for the plaintiff-appellee.
2142 MORRISON v. MAHONEY
OPINION
CALLAHAN, Circuit Judge:
James Morrison (“Morrison”) appeals the denial of his
habeas petition by the district court pursuant to 28 U.S.C.
§ 2254. Morrison contends that the district court erred in find-
ing that various of his habeas claims were barred by proce-
dural default. He asserts that the appellee, Michael Mahoney,
the warden of the Montana State Prison (“the State”), waived
this defense by failing to raise it in a timely manner. In addi-
tion, Morrison has filed a motion to this court to broaden the
Certificate of Appealability (“COA”) to include the issue of
whether the state trial court violated his Sixth Amendment
right to counsel by failing to properly investigate his com-
plaints about his trial counsel. We have jurisdiction under 28
U.S.C. §§ 1291 and 2253. We affirm the district court’s denial
of the habeas petition, and deny Morrison’s motion to broaden
the COA.
I. BACKGROUND
A State trial court proceedings
On September 18, 1990, Morrison was charged with having
sexual intercourse without consent in violation of Mont. Code
Ann. § 45-5-503. During the arraignment, the court appointed
counsel for Morrison. On October 29, 1990, Morrison wrote
a letter to the trial judge, requesting new counsel and com-
plaining that he had not yet met with his attorney, Adams, to
review his case. The court responded on November 1, 1990,
with a letter to Adams that enclosed the letter from Morrison
and stated “Please see Mr. Morrison about this matter. Please
see me about this matter.” Nothing more about this matter
appears in the record until after trial, but it is apparent that
Adams continued to represent Morrison.
Following trial, a jury convicted Morrison of the charges
against him. Prior to sentencing, Morrison again made a
MORRISON v. MAHONEY 2143
request for new counsel, which the court denied without a
hearing. The court, however, appointed co-counsel and con-
tinued the sentencing hearing for one week. Morrison was
sentenced to 20 years in prison plus three additional years for
use of a weapon during the rape. He was designated a danger-
ous offender for parole purposes.
B Direct appeal
Morrison retained new counsel on his appeal to the Mon-
tana Supreme Court. The Montana Supreme Court rejected
Morrison’s argument that the trial court erred in not holding
a hearing concerning his October 29, 1990, request for substi-
tute counsel. The Montana Supreme Court remanded the mat-
ter for resentencing, however, because the trial court did not
provide reasons for designating Morrison a dangerous
offender. On remand, the trial court resentenced Morrison,
ultimately imposing a sentence of identical duration.
C State post-conviction relief
Morrison filed a series of petitions for post-conviction
relief to the Montana Supreme Court. The Montana Supreme
Court rejected his arguments that his trial and appellate coun-
sel had provided ineffective assistance, and denied several of
Morrison’s other claims as time-barred and procedurally
barred.
D Federal habeas proceedings
On October 6, 1999, Morrison filed a habeas petition in
United States District Court in the District of Montana. In his
petition, he presented a total of sixteen claims. The State filed
a motion to dismiss the petition on statute of limitations
grounds, which the district court granted.
Morrison appealed to this court and we reversed and
remanded for further consideration in light of our recent hold-
2144 MORRISON v. MAHONEY
ing in Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir.
2000)(en banc). We instructed the district court to hold an
evidentiary hearing as to whether Morrison would be entitled
to equitable tolling of the statute of limitations pursuant to
Whalem/Hunt.
On remand, the State abandoned its statute of limitations
defense and instead filed an answer to Morrison’s habeas peti-
tion. The State argued that most of Morrison’s claims were
procedurally barred because they were not timely raised in
state court and were otherwise barred on independent state
grounds. The district court agreed, and dismissed all but three
of Morrison’s claims as barred. It rejected Morrison’s remain-
ing claims on their merits.1
Morrison filed a timely Notice of Appeal and a Motion for
a COA to the district court. The district court granted the
COA only as to Morrison’s claim that the State had waived
its defense of procedural default. Morrison’s counsel then
filed a motion to this court to broaden the COA to include the
issue of whether Morrison was denied effective assistance of
counsel due to the trial court’s failure to investigate his com-
plaints concerning counsel. We first consider Morrison’s
claim that the State waived its procedural default defense and
then turn to his motion to broaden the COA.
II. DISCUSSION
A Procedural Default
A district court’s dismissal of a petition for writ of habeas
1
These claims were that: (1) the trial court erred in failing to hold a
hearing on Morrison’s motion to substitute trial counsel; (2) Morrison’s
trial counsel failed to interview and subpoena defense witnesses; and (3)
Morrison’s appellate counsel was ineffective for failing to raise trial coun-
sel’s ineffectiveness in failing to locate, interview, and subpoena two
defense witnesses.
MORRISON v. MAHONEY 2145
corpus due to procedural default is reviewed de novo. Dubria
v. Smith, 224 F.3d 995, 1000 (9th Cir. 2000) (en banc); Vang
v. Nevada, 329 F.3d 1069, 1072 (9th Cir. 2003).
The procedural default doctrine “bars federal habeas when
a state court declined to address a prisoner’s federal claims
because the prisoner had failed to meet a state procedural
requirement.” Calderon v. United States District Court, 96
F.3d 1126, 1129 (9th Cir. 1996) (internal quotations omitted).
The petitioner can avoid the effect of a procedural default by
showing cause and prejudice or manifest injustice. Martinez-
Villareal v. Lewis, 80 F.3d 1301, 1307 (9th Cir. 1996).
1. Express waiver
[1] Morrison contends that the State expressly waived its
procedural default defense because, after we remanded this
matter to the district court, the State filed a document2 in
which it asserted that it preferred that the petition move for-
ward in the federal courts. Morrison contends that this state-
ment is a waiver by the State of all its defenses in order to
argue the claims presented on the merits.3 We do not read the
2
The document provides as follows:
In light of the procedural circumstances of this case, the State
will make no response to Morrison’s affidavit and memorandum,
dated May 20 and 23, 2002, respectively. The State does not
agree with or concede that Morrison’s assessment of the case and
facts regarding his alleged inability to access legal documents are
correct. The State, however, would prefer to allow Morrison’s
petition to move forward in the federal courts. The State therefore
no longer wishes to pursue its opposition to Morrison’s petition
based upon 28 U.S.C. § 2244(d)(1) and requests that it be
allowed seven days, or until September 23, 2002, to file an
Answer or other appropriate response to Morrison’s Petition for
Writ of Habeas Corpus.
3
See Magouirk v. Phillips, 144 F.3d 348 (5th Cir. 1998) (noting that a
state’s purposeful waiver of a procedural default defense should be given
special weight by a district court).
2146 MORRISON v. MAHONEY
document in this way. The document provides, in part, that
“the State therefore no longer wishes to pursue its opposition
to Morrison’s petition based upon 28 U.S.C. § 2244(d)(1)
. . . .” Section 28 U.S.C. § 2244(d)(1) imposes a one-year stat-
ute of limitations on habeas petitioners. A review of the docu-
ment therefore shows that it is not a blanket waiver of the
State’s defenses, but only a waiver of the argument concern-
ing the statute of limitations. We therefore reject Morrison’s
argument that the State expressly waived its procedural
default defense.
2. Implied Waiver
Morrison next argues that the State impliedly waived the
procedural default defense by failing to raise this defense in
a timely manner. In particular, Morrison claims that the pro-
cedural default defense was not timely raised because it was
not presented until after the matter was returned on remand to
the district court. He contends that the State forever waived
its procedural default defense by not raising it in its January
20, 2000, motion to dismiss that contained its initial statute of
limitations defense.
[2] Morrison cites Franklin v. Johnson, 290 F.3d 1223 (9th
Cir. 2002), as controlling. There, we held that the State may
not raise a defense of procedural default for the first time
before the court of appeals.4 Morrison contends that, follow-
ing the logic of Franklin, the State also may not raise a proce-
dural default defense to the district court for the first time on
4
We have previously held that the State waives its procedural default
defense if it does not raise it at the district court level. See Batchelor v.
Cupp, 693 F.2d 859, 864 (9th Cir. 1982). We have found sound policy rea-
sons to support the requirement that the State identify procedural default
issues before the district court. These reasons include a belief that the
state’s representative is in the best position to know if “a federal habeas
petitioner has failed to comply with state procedures . . . and argue in fed-
eral court that the state has an interest in barring federal review of the mer-
its.” Id.
MORRISON v. MAHONEY 2147
remand. But Morrison’s argument does not follow the logic
of Franklin at all. Generally a party cannot raise on appeal
contentions that were not raised below, because the trial court
should have the first opportunity to address the issues. Beech
Aircraft Corp. v. U.S., 51 F.3d 834, 841 (9th Cir. 1995). That
principle does not imply that a party cannot raise on a remand
a point not reached when that same party prevailed previ-
ously.
[3] Here, the district court granted the State’s initial motion
to dismiss which asserted only a statute of limitations argu-
ment. Morrison appealed and we remanded the matter back to
the district court for reconsideration. Morrison contends, how-
ever, that in the civil litigation context, affirmative defenses
may be waived when they are not raised early in a judicial
proceeding. Under the Federal Rules of Civil Procedure, a
party, with limited exceptions, is required to raise every
defense in its first responsive pleading, and defenses not so
raised are deemed waived. See Fed. R. Civ. P. 8(c); Fed. R.
Civ. P. 12(b); Fed. R. Civ. P. 12(g).5
[4] Rule 7(a) defines “pleadings” as a complaint and
answer; a reply to a counterclaim; an answer to a cross-claim;
and a third party complaint and answer. Anything else is a
motion or paper. The requirement in Rule 8(c) that a party set
forth the affirmative defenses listed in that rule applies only
to responsive “pleadings,” not to motions. A motion to dis-
miss is not a pleading. Unless a court has ordered otherwise,
separate motions to dismiss may be filed asserting different
affirmative defenses. See Hawkins v. Risley, 984 F.2d 321,
324 n.5 (9th Cir. 1993).
[5] We have extended similar principles to the habeas con-
text. For example, we recently joined the Third and Sixth Cir-
5
28 U.S.C. § 2254 R. 11 makes the Federal Rules of Civil Procedure
applicable to habeas petitions to the extent they are not inconsistent with
the Habeas Rules.
2148 MORRISON v. MAHONEY
cuits in holding that a state waives its statute of limitations
defense by filing a responsive pleading that fails to affirma-
tively set forth the defense. Nardi v. Stewart, 354 F.3d 1134,
1141 (9th Cir. 2004). In Nardi, we stated that “[t]here is no
dispute that AEDPA’s statute of limitations is an affirmative
defense. . . . Accordingly, Federal Rules of Civil Procedure
8(c) and 12(b) require that the state raise the statute of limita-
tions in its first responsive pleading to avoid waiving the
defense.” Id. at 1140.
[6] Procedural default, like the statute of limitations, is an
affirmative defense. Vang, 329 F.3d at 1073. We therefore
follow Nardi and hold that the defense of procedural default
should be raised in the first responsive pleading in order to
avoid waiver. The issue remains, however, whether the
State’s motion to dismiss can fairly be construed as its first
responsive pleading. The State argues that its answer follow-
ing remand, and not its initial motion to dismiss, was its first
responsive pleading. We agree.
[7] This case is governed by United States v. Valdez, 195
F.3d 544 (9th Cir. 1999). In Valdez, this court held that a pro-
cedural default defense was not waived by the failure of a
state to raise it in a motion to dismiss. In Valdez, this court
reversed a district court’s dismissal of a habeas petition on
statute of limitations grounds for reconsideration in light of
any other available defenses. The court noted that such
defenses would normally be waived by the government’s fail-
ure to raise it to the district court, but that “[h]ere . . . the gov-
ernment only filed a motion to dismiss, which was granted,
and never filed an answer to the § 2255 motion.” Id. at 548.
The court concluded that “[w]e thus deem it premature, at this
stage, to hold that the government has waived any possible
procedural default defense.” Id. We similarly hold that, on the
facts of this case, the State did not waive its procedural
default defense.
[8] Furthermore, in the analogous context of civil litigation,
we have held that a motion to dismiss is not a responsive
MORRISON v. MAHONEY 2149
pleading within the meaning of the Federal Rules of Civil
Procedure. See Shaver v. Operating Engineers Local 428 Pen-
sion Trust Fund, 332 F.3d 1198, 1201 (9th Cir. 2003) (“In any
event, the motion to dismiss was not a responsive pleading
within the meaning of Fed. R. Civ. P. 15(a).”) It therefore fol-
lows that in this case, the State’s motion to dismiss was not
a responsive pleading that required the State to raise or waive
all its defenses.
B Request for a Certificate of Appealability
[9] We deny Morrison’s motion to expand his COA to
include a claim of ineffective assistance of counsel. He did
not fairly present this to the highest court of the State of Mon-
tana, and appears, in any event, to have no claim of denial of
the federal right to the effective assistance of counsel that
would be debatable among jurists of reason.
For the foregoing reasons, the district court’s order dismiss-
ing Morrison’s habeas petition is AFFIRMED, and his motion
to broaden his COA is DENIED.