FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY PAUL CASSETT, No. 03-16573
Petitioner-Appellant,
v. D.C. No.
CV-97-00548-WDB
TERRY L. STEWART, Director,
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
William D. Browning, District Judge, Presiding
Submitted April 26, 2005*
San Francisco, California
Filed May 3, 2005
Before: A. Wallace Tashima, Sidney R. Thomas, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
4785
CASSETT v. STEWART 4789
COUNSEL
Jeffrey D. Bartolino, Tucson, Arizona, for the petitioner-
appellant.
Terry Goddard, Attorney General, Phoenix, Arizona; Kent E.
Cattani, Chief Counsel, Capital Litigation Section, Phoenix,
Arizona; Monica B. Klapper, Assistant Attorney General,
Capital Litigation Section, Phoenix, Arizona, for the
respondent-appellee.
OPINION
PAEZ, Circuit Judge:
Petitioner Gary Paul Cassett (“Cassett”) appeals from the
district court’s dismissal with prejudice of his petition for a
writ of habeas corpus under 28 U.S.C. § 2254. In a previous
appeal, we “remand[ed] to the district court with directions to
dismiss the petition because Cassett failed to exhaust his fed-
eral due process claim in the Arizona state courts.” Cassett v.
Stewart (Cassett I), 49 Fed. Appx. 154, 154 (9th Cir. 2002)
(unpublished disposition). On remand, the district court dis-
missed Cassett’s habeas petition with prejudice because it
concluded that “the Court of Appeals failed to note that Peti-
tioner’s claims have been procedurally defaulted in the state
courts and are technically exhausted.” Further, the district
court held in the alternative that even if Cassett’s claim is not
exhausted, dismissal with prejudice is appropriate under 28
U.S.C. § 2254(b)(2) because the district court “has deter-
mined that the claim is without merit.” Accordingly, the dis-
trict court denied Cassett’s petition both as procedurally
defaulted and on the merits.
In this appeal, Cassett argues that the district court
exceeded the scope of our mandate by reaching the issue of
4790 CASSETT v. STEWART
procedural default and dismissing his habeas petition with
prejudice. Cassett also argues that even if the district court did
not violate our mandate, his claim is not procedurally
defaulted because he never “knowingly, voluntarily, and intel-
ligently” waived his right to raise it. Further, Cassett asserts
that even if his claim is procedurally defaulted, he has demon-
strated cause and prejudice excusing the default. Additionally,
Cassett argues that the district court erred by alternatively
denying his petition on the merits under 28 U.S.C.
§ 2254(b)(2) because it was not “perfectly clear” that he failed
to raise a colorable federal claim. Finally, Cassett contends
that the district court should stay the proceedings and hold his
exhausted petition in abeyance while he attempts to exhaust
his unexhausted federal due process claim in state court. We
have jurisdiction over this appeal pursuant to 28 U.S.C.
§§ 1291, 2253, and we reverse and remand.
We hold that the district court did not exceed the scope of
our mandate in ruling on procedural default, that Cassett’s
federal due process claim is not procedurally defaulted
because it is not clear that the Arizona state courts would find
this claim procedurally barred, and that the district court erred
in dismissing Cassett’s due process claim under 28 U.S.C.
§ 2254(b)(2) because it is not perfectly clear that this claim is
not colorable. Finally, on remand, we direct the district court
to consider Cassett’s request that the court stay his habeas
petition and hold his exhausted claims in abeyance while
allowing Cassett to exhaust his federal due process claim in
the state courts.
FACTUAL BACKGROUND
Cassett was charged with two counts of child molestation
and four counts of sexual conduct with a person under the age
of 14, stemming from events that occurred in November and
December of 1990 with his stepson. Although Cassett agreed
to plead guilty to kidnaping, a class two felony, at the change
of plea hearing the trial judge found an insufficient factual
CASSETT v. STEWART 4791
basis for the plea, and the plea was never entered. Cassett’s
attorney hired John Sloss (“Sloss”), a criminal justice consul-
tant, to prepare an alternative pre-sentence report, which
revealed that Cassett had admitted to child molestation.
Although the report was prepared to rebut the State’s pre-
sentence report, Cassett believed that what he said to Sloss
was confidential. Sloss, too, thought the report was protected
by the attorney-client privilege.
Cassett pled guilty to attempted molestation and attempted
sexual conduct with a minor because he believed this plea
would allow the court to impose a probationary sentence.
Prior to his sentencing hearing, Cassett’s attorney disclosed
the existence of Sloss’s alternative pre-sentence report to the
prosecutor because he planned to use it if necessary for rebut-
tal. However, the report was never presented to the court.
Cassett was sentenced to two consecutive twelve-year terms.
Cassett’s sentence was vacated after he alleged in a petition
for post-conviction relief under Ariz. R. Crim. P. 32.1 that he
was not informed that his sentences would run consecutively.
The case then proceeded to trial. During a pre-trial hearing,
the State disclosed that it planned to call Sloss as a witness.
Cassett’s attorney filed a motion in limine to exclude Sloss’s
testimony, which the court denied.
Three trials were held in this case. The first ended in a mis-
trial after the jury learned of the plea and the prior sentencing.
The second ended in a mistrial because the jury deadlocked.
Sloss did not testify at either of the first two trials, but the
State reserved him as a rebuttal witness during the second
trial.
Prior to the third trial, the prosecutor informed Cassett’s
attorney that she intended to call Sloss as a witness in her
case-in-chief. Cassett’s attorney moved the court to preclude
the State from calling Sloss as a witness. The trial court ruled
that Sloss would be permitted to testify, but that his testimony
4792 CASSETT v. STEWART
would be limited to what Cassett said to Sloss. Cassett’s attor-
ney responded that this ruling “necessarily puts me in the
position of having to open the whole issue of [the] plea agree-
ment and sentencing” and noted on the record that he there-
fore would “approach it from that manner as a point of
necessity given the Court’s rulings.”
Sloss testified during direct examination that Cassett told
him he had pled guilty to oral sex with his stepson. Cassett’s
attorney elicited further information from Sloss on cross-
examination regarding the guilty plea and the circumstances
surrounding it. Cassett was convicted of two counts of child
molestation and four counts of sexual conduct with a person
under the age of 14. The trial court sentenced him to consecu-
tive prison terms of 20 and 30 years and four life terms.
PROCEDURAL HISTORY
Cassett appealed his conviction to the Arizona Court of
Appeals, arguing that (1) the trial court should have precluded
Sloss from testifying about admissions Cassett made during
the preparation of the pre-sentence report, under Ariz. R.
Crim. P. 26.6(d)(2),1 the purpose of which is to protect crimi-
nal defendants from self-incrimination, and that (2) the trial
court abused its discretion when it denied Cassett’s request
for a one-day mid-trial continuance to locate and bring to
court a defense witness.
While his appeal was pending, Cassett sought post-
conviction relief in the trial court, alleging: (1) ineffective
assistance of counsel based on (a) trial counsel’s decision to
present evidence of Cassett’s prior guilty plea, (b) trial coun-
sel’s failure to interview a potential defense witness, and (c)
previous trial counsel’s disclosure of the existence of the pre-
1
Ariz. R. Crim. P. 26.6(d)(2) provides that “[n]either a pre-sentence
report nor any statement made in connection with its preparation shall be
admissible as evidence in any proceeding bearing on the issue of guilt.”
CASSETT v. STEWART 4793
sentence report; and alleging (2) that the prosecutor engaged
in misconduct by (a) intimidating potential defense witnesses,
and (b) informing the jury of information contained in a docu-
ment the court had ruled inadmissible. The trial court denied
relief without an evidentiary hearing.
Cassett appealed the denial of post-conviction relief to the
Arizona Court of Appeals, which consolidated his appeals and
affirmed Cassett’s convictions and sentences. The Court of
Appeals ruled that: (1) the trial court did not err in admitting
Sloss’s testimony because Ariz. R. Crim. P. 26.6(d)(2) only
applies to pre-sentence reports prepared pursuant to court
order, not private pre-sentence reports; (2) the trial court did
not abuse its discretion in denying a mid-trial continuance;
(3)(a) trial counsel’s decision to offer evidence about the plea
negotiations was tactical and did not constitute unreasonable
performance; (3)(b) Cassett was not prejudiced by his coun-
sel’s failure to interview a potential witness; and (4) Cassett
was not prejudiced by any alleged prosecutorial misconduct.
The Court of Appeals declined to consider Cassett’s claim
that his previous trial counsel rendered ineffective assistance
by disclosing the existence of the pre-sentence report because
it held that this claim was precluded under Ariz. R. Crim. P.
32.2(a)(3).2 Cassett filed a petition for review with the Ari-
zona Supreme Court, which denied review on October 31,
1996.
On September 2, 1997, pursuant to 28 U.S.C. § 2254, Cas-
sett filed a habeas petition in the United States District Court
for the District of Arizona, stating the following claims for
relief: (1) the trial court violated Cassett’s federal due process
rights by allowing Sloss to testify that Cassett had pled guilty;
(2) the trial court’s denial of a mid-trial continuance to find
and bring to court a defense witness violated Cassett’s Sixth
2
Ariz. R. Crim. P. 32.2(a)(3) provides that a defendant “shall be pre-
cluded from relief under this rule based upon any ground . . . [t]hat has
been waived at trial, on appeal, or in any previous collateral proceeding.”
4794 CASSETT v. STEWART
Amendment right to compulsory process; (3) Cassett received
ineffective assistance of counsel because (a) his trial counsel
elicited evidence that Cassett had pled guilty, (b) his counsel
failed to interview a potential defense witness, and (c) his pre-
vious counsel disclosed the existence of the pre-sentence
report; and (4) the prosecutor violated Cassett’s Fifth Amend-
ment rights by engaging in misconduct, including (a) intimi-
dating potential defense witnesses and (b) informing the jury
of information from an excluded document.
The State conceded that Cassett exhausted his state court
remedies with regard to claims 2, 3(a), 3(b), 4(a), and 4(b).
However, the State argued that Cassett failed to exhaust his
remedies with regard to claim 1 (the trial court violated Cas-
sett’s due process rights by allowing Sloss to testify that Cas-
sett had pled guilty), and that Cassett was procedurally barred
under Ariz. R. Crim. P. 32.2(a)(3) from presenting claim 3(c)
(Cassett’s previous counsel rendered ineffective assistance by
disclosing the existence of the pre-sentence report).
On April 2, 2001, the district court determined that claim
1 was exhausted because Cassett had alleged a violation of his
right against self-incrimination under the Fifth Amendment in
his opening brief before the Arizona Court of Appeals. Fur-
ther, the district court agreed that Cassett failed to present
claim 3(c) to the state court earlier and therefore procedurally
defaulted this claim; however, the court held that Cassett had
shown cause and prejudice excusing this default and therefore
proceeded to review the merits of this claim.
The district court then denied claims 2, 3(b), 3(c), 4(a), and
4(b) on the merits. With regard to claim 1, the district court
concluded that it could not determine whether a constitutional
violation had occurred because the transcripts provided to the
court omitted critical parts of the record. For the same reason,
the district court declined to rule on the merits of claim 3(a)
(Cassett’s counsel deprived him of effective assistance by
eliciting evidence of his guilty plea), noting that while Cas-
CASSETT v. STEWART 4795
sett’s lawyer’s “decision may have crossed the line of compe-
tent advocacy,” the court lacked “sufficient evidence at this
time to consider fully” whether Cassett was prejudiced by this
decision. Thus, the court ordered that a complete trial tran-
script be provided.
In a July 31, 2001 Order, after reviewing the full trial tran-
script, the district court addressed the merits of Cassett’s due
process claim. The court first noted that the State argued that
Cassett had failed to properly raise the claim in state court and
that the claim was procedurally defaulted. Although the dis-
trict court previously had determined that Cassett exhausted
this claim in state court, it concluded that there was sufficient
cause to excuse any procedural default. The district court then
held that the trial court’s decision to allow Sloss’s testimony
and the subsequent revelation of the guilty plea was harmless
error. Accordingly, the district court denied Cassett’s habeas
petition.
Cassett then moved for reconsideration of the court’s order
denying habeas relief. The State, too, filed a motion for recon-
sideration, disagreeing with the court’s ruling that Cassett’s
procedural default was excused. The district court denied Cas-
sett’s motion for reconsideration, ruling again that the admis-
sion of Sloss’s testimony regarding Cassett’s vacated guilty
plea was harmless error. The court also denied the State’s
motion for reconsideration, ruling that it properly reached the
merits of Cassett’s due process claim despite the State’s con-
tention that the claim was procedurally defaulted because “a
recent Ninth Circuit decision appears to require this Court to
assume that the state court reviewed the relevant federal con-
stitutional law when it denied a Rule 32 petition.”3 The court
3
The district court cited to Smith v. Stewart, 241 F.3d 1191 (9th Cir.
2001), which held that federal habeas review of a claim was not barred
despite an Arizona state court’s ruling that the claim was precluded under
Ariz. R. Crim. P. 32.2(a)(3). The Smith court held that because Arizona’s
preclusion rule requires an assessment of the “constitutional magnitude”
4796 CASSETT v. STEWART
further noted that under 28 U.S.C. § 2254(b)(2), it may deny
a habeas application on the merits notwithstanding the appli-
cant’s failure to exhaust remedies in state court.
Cassett appealed the district court’s July 31, 2001 Order as
well as the court’s denial of his motion for reconsideration.4
In Cassett I, we held that “the district court erred in conclud-
ing that Cassett adequately exhausted his federal due process
claim, and based on this error, improperly reached the merits
of Cassett’s claim.” 49 Fed. Appx. at 155. We vacated the
judgment and remanded with instructions that the district
court dismiss the petition for failure to exhaust state court
remedies. Id.
On remand, the district court dismissed Cassett’s petition
with prejudice, holding that (1) Cassett’s claim was procedur-
ally defaulted and was therefore technically exhausted, and
(2) under 28 U.S.C. § 2254(b)(2) the petition should be
denied even if it is not exhausted because the court “has deter-
mined that the claim is without merit.” Cassett moved for an
amendment of judgment, arguing that the district court failed
to follow the Ninth Circuit’s mandate in ruling on procedural
of the claim, the state court’s finding of preclusion was “necessarily inter-
twined” with an evaluation of the merits of petitioner’s federal claim, and
thus the state procedural ruling was not sufficiently independent of federal
law to bar federal habeas review. Id. at 1197. The United States Supreme
Court, after certification to the Arizona Supreme Court, see Stewart v.
Smith, 534 U.S. 157, 159 (2001); Stewart v. Smith, 46 P.3d 1067, 1071
(Ariz. 2002), reversed the Ninth Circuit’s ruling and held that under Ari-
zona law, whether a claim is of sufficient constitutional magnitude to
require a knowing, voluntary, and intelligent waiver does not depend on
the merits of the claim but rather on the particular right alleged to have
been violated. Stewart v. Smith, 536 U.S. 856, 859-61 (2002).
4
The district court issued a certificate of appealability on the question
“whether the admission of the testimony of the preparer of an alternative
pretrial statement and the questioning of Petitioner’s counsel improperly
brought in Petitioner’s prior guilty plea and created a due process viola-
tion.”
CASSETT v. STEWART 4797
default, that the district court erred in finding his due process
claim procedurally defaulted, and that even if his claim was
procedurally defaulted, Cassett demonstrated cause and preju-
dice excusing the default. Cassett also requested that the court
stay his habeas petition and hold his exhausted claims in
abeyance while allowing Cassett to exhaust his federal due
process claim in state court. The district court, in a July 8,
2003 Order, denied Cassett’s motion, stating that Cassett
“fails to note that the Court has already determined, whether
or not the claims were exhausted, that his claim is without
merit as the error claimed of did not raise [sic] to the level of
a denial of his Constitutional rights.”
Cassett then requested a certificate of appealability, which
the district court granted with respect to the following issues:
(1) whether the petition for habeas relief should have been
dismissed without prejudice for failure to exhaust, (2) whether
Cassett was denied due process under the Fifth and Four-
teenth Amendments based on the introduction at trial of a pre-
viously vacated guilty plea, and (3) assuming the application
should have been dismissed without prejudice, whether the
district court should have held the mixed petition in abeyance
and allowed Cassett to exhaust his remedies in state court.
STANDARD OF REVIEW
We review de novo a district court’s compliance with our
mandate. United States v. Kellington, 217 F.3d 1084, 1092
(9th Cir. 2000). A district court’s dismissal of a habeas peti-
tion based on procedural default is reviewed de novo. Morri-
son v. Mahoney, 399 F.3d 1042, 1045 (9th Cir. 2005).
Dismissals of mixed petitions are reviewed de novo. Olvera
v. Giurbino, 371 F.3d 569, 572 (9th Cir. 2004).
I
Cassett first argues that the district court exceeded the
scope of our mandate by dismissing his petition with preju-
4798 CASSETT v. STEWART
dice. As noted, our memorandum disposition held that the dis-
trict court erred in concluding that Cassett had exhausted his
federal due process claim and therefore directed the district
court to dismiss the petition for failure to exhaust. On remand,
the district court concluded that Cassett’s due process claim
was procedurally defaulted and therefore “technically
exhausted” because Cassett would be procedurally barred
from raising the claim in state court.5 Accordingly, the district
court dismissed his petition with prejudice.
[1] “[A]lthough lower courts are obliged to execute the
terms of a mandate, they are free as to anything not foreclosed
5
The exhaustion requirement is distinct from the procedural default rule.
The exhaustion doctrine applies when the state court has never
been presented with an opportunity to consider a petitioner’s
claims and that opportunity may still be available to the petitioner
under state law. In contrast, the procedural default rule barring
consideration of a federal claim applies only when a state court
has been presented with the federal claim, but declined to reach
the issue for procedural reasons, or if it is clear that the state court
would hold the claim procedurally barred.
Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quota-
tion marks and citations omitted). Thus, in some circumstances, a petition-
er’s failure to exhaust a federal claim in state court may cause a
procedural default. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir.
2002); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is
procedurally defaulted ‘if the petitioner failed to exhaust state remedies
and the court to which the petitioner would be required to present his
claims in order to meet the exhaustion requirement would now find the
claims procedurally barred.’ ” (quoting Coleman v. Thompson, 501 U.S.
722, 735 n.1 (1991))).
“A habeas petitioner who has defaulted his federal claims in state court
meets the technical requirements for exhaustion; there are no state reme-
dies any longer ‘available’ to him.” Coleman, 501 U.S. at 732 (emphasis
added). A federal claim that is defaulted in state court pursuant to an ade-
quate and independent procedural bar may not be considered in federal
court unless the petitioner demonstrates cause and prejudice for the
default, or shows that a fundamental miscarriage of justice would result if
the federal court refused to consider the claim. Id. at 750.
CASSETT v. STEWART 4799
by the mandate, and, under certain circumstances, an order
issued after remand may deviate from the mandate . . . if it is
not counter to the spirit of the circuit court’s decision.” Kel-
lington, 217 F.3d at 1092-93 (alterations in original) (internal
quotation marks and citations omitted). Here, the district
court’s decision was neither “foreclosed by” nor “counter to
the spirit” of our mandate in Cassett I because we did not spe-
cifically address the issue of procedural default,6 nor did we
instruct the district court to dismiss Cassett’s claim without
prejudice. See id. at 1093 (holding that the “ultimate task is
to distinguish matters that have been decided on appeal, and
are therefore beyond the jurisdiction of the lower court, from
matters that have not”). Thus, the district court did not exceed
the scope of our mandate by dismissing Cassett’s petition
with prejudice.
II
Although the district court was within its discretion to
address the issue of procedural default, we disagree with its
resolution of this issue. The district court concluded that Cas-
sett’s federal due process claim is procedurally defaulted
because he “may not return to State courts to present his claim.”7
Cassett argues that he is not barred from returning to state
court because he did not waive his federal due process claim
within the meaning of Ariz. R. Crim. P. 32.2(a)(3).
6
A district court may consider sua sponte the separate issue of proce-
dural default. See Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998)
(“[I]n cases where a claim has not previously been brought in state court,
the district court must consider whether the claim could be pursued by any
presently available state remedy.”).
7
Cassett first asserts that he in fact previously “raised the issue of funda-
mental error caused by the introduction of the guilty plea at trial.” How-
ever, in Cassett I, we held that Cassett never raised the federal
constitutional claim that he has presented in his federal habeas petition.
See Cassett I, 49 Fed. Appx. at 155 (“Nowhere in his Petition for Review
filed with the Arizona Supreme Court does Cassett discuss Fourteenth
Amendment due process or that the trial court denied him a fair trial in
violation of his due process rights.”).
4800 CASSETT v. STEWART
[2] Under Arizona law, a claim that is “of sufficient consti-
tutional magnitude” can only be waived “knowingly, volun-
tarily, and intelligently.” See Ariz. R. Crim. P. 32.2(a)(3), cmt.8
Whether a particular ground is of sufficient constitutional
magnitude to require a knowing, voluntary, and intelligent
waiver depends on the particular right alleged to have been
violated, rather than the merits of the claim. Stewart v. Smith,
46 P.3d 1067, 1070-71 (Ariz. 2002); State v. Espinosa, 29
P.3d 278, 280 (Ariz. Ct. App. 2001) (holding that knowing,
voluntary, and intelligent waiver is required for “claims
involving such constitutional rights as the right to counsel, the
right to a jury trial, or the right to be tried by a twelve-person
jury” (internal citations omitted)).
[3] If the right asserted “is of sufficient constitutional mag-
nitude to require personal waiver by the defendant and there
has been no personal waiver, the claim is not precluded.”
Stewart, 46 P.3d at 1071. Determining whether a waiver is
knowing, voluntary, and intelligent often involves a fact-
intensive inquiry. See, e.g., Johnson v. Lewis, 929 F.2d 460,
462 (9th Cir. 1991) (holding that Rule 32.2(a)(3) preclusion
did not apply where “the undisputed evidence showed (1) that
[the petitioner] instructed his court-appointed appellate coun-
sel to raise his federal constitutional claim in his direct appeal,
and (2) that his attorney believed that he had raised the issue
in the briefs filed on his client’s behalf”); Espinosa, 29 P.3d
at 280 (“[P]reclusion does not apply to claims involving cer-
tain constitutional rights unless the record shows that the
8
Prior to 1992, Ariz. R. Crim. P. 32.2(a)(3) required that a defendant
“knowingly, voluntarily, and intelligently” waive a claim before it was
deemed precluded. In 1992, the Rule was amended to delete this language,
and to provide that a defendant shall be precluded from relief on “any
ground [t]hat has been waived at trial, on appeal, or in any previous collat-
eral proceeding.” (emphasis added). A comment to the Rule, however,
makes clear that the knowing, voluntary, and intelligent waiver require-
ment still applies to claims of sufficient constitutional magnitude. Ariz. R.
Crim. P. 32.2(a)(3), cmt.
CASSETT v. STEWART 4801
defendant knowingly, voluntarily, and intelligently waived the
right.” (emphasis added)).
[4] Here, the district court did not address whether Cas-
sett’s claim is of sufficient constitutional magnitude to require
a knowing, voluntary, and intelligent waiver, nor did it make
any factual findings regarding whether Cassett waived his
claim. The Arizona state courts are better suited to make these
determinations, which may require both a fact-intensive
inquiry, and an application of Arizona’s complex case law on
waiver. See Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.
2004) (“Principles of comity and federalism counsel against
substituting our judgment for that of the state courts . . . .”).
[5] Because it is not clear that the Arizona courts would
hold Cassett’s federal due process claim barred under Ariz. R.
Crim. P. 32.2(a)(3), we conclude that his claim is not proce-
durally defaulted. See Franklin, 290 F.3d at 1230-31 (stating
that a claim is procedurally defaulted only when a state court
has been presented with the federal claim but refused to
address it for procedural reasons, or when it is clear that the
state court would hold the claim procedurally barred). We
therefore reverse the district court’s procedural default ruling.
III
The district court alternatively held that even if Cassett’s
federal due process claim is not exhausted, his petition should
be dismissed with prejudice under 28 U.S.C. § 2254(b)(2)
because the district court determined that the claim was with-
out merit. Cassett argues that this alternative holding was in
error. We agree.
[6] Section 2254(b)(2) of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) provides that “[a]n application
for a writ of habeas corpus may be denied on the merits, not-
withstanding the failure of the applicant to exhaust the reme-
dies available in the courts of the State.” 28 U.S.C.
§ 2254(b)(2). The Ninth Circuit has not adopted a standard for
determining when it is appropriate to deny an unexhausted
claim on the merits under § 2254(b)(2). Other courts, how-
4802 CASSETT v. STEWART
ever, have held that § 2254(b)(2) codifies the Supreme
Court’s decision in Granberry v. Greer, 481 U.S. 129, 135
(1987), which held that a federal court may deny an unex-
hausted claim on the merits where “it is perfectly clear that
the applicant does not raise even a colorable federal claim.”
See, e.g., Jones v. Morton, 195 F.3d 153, 156 n.2 (3d Cir.
1999) (“[Section] 2254(b)(2) is properly invoked only when
it is perfectly clear that the applicant does not raise even a col-
orable federal claim. If a question exists as to whether the
petitioner has stated a colorable federal claim, the district
court may not consider the merits of the claim if the petitioner
has failed to exhaust state remedies.” (internal quotation
marks and citations omitted)); Mercadel v. Cain, 179 F.3d
271, 276 n.4 (5th Cir. 1999) (“[W]e cannot say that ‘it is per-
fectly clear that the applicant does not raise even a colorable
federal claim,’ and denial of relief under § 2254(b)(2) is
therefore inappropriate.” (quoting Granberry, 481 U.S. at
129)); Hoxsie v. Kerby, 108 F.3d 1239, 1243 (10th Cir. 1997)
(reading § 2254(b)(2) in conjunction with Granberry and not-
ing that under Granberry, “if the court of appeals is con-
vinced that the petition has no merit, a belated application of
the exhaustion rule might simply require useless litigation in
the state courts”) (quoting Granberry, 481 U.S. at 133)).9 We
now join our sister circuits in adopting the Granberry stan-
dard and hold that a federal court may deny an unexhausted
9
In Padilla v. Terhune, 309 F.3d 614 (9th Cir. 2002), this court denied
a habeas petition on the merits under 28 U.S.C. § 2254(b)(2) in the face
of the State’s argument that the petitioner’s claim was not exhausted. The
Padilla court, however, did not adopt a standard for when it is appropriate
to deny an unexhausted claim on the merits. See id. at 620-21. Indeed, the
court did not even address whether § 2254(b)(2) should be read in con-
junction with Granberry. Under these circumstances, we do not view
Padilla as foreclosing our consideration of the issue presented and decided
here. See United States v. Joyce, 357 F.3d 921, 925 & n.3 (9th Cir. 2004)
(holding that a prior panel’s decision did not bind the present panel’s con-
sideration of an issue where in the prior decision “there is no indication
that the defendant or the government brought this issue to the court’s
attention, nor is there any indication that the court explicitly considered or
decided it”).
CASSETT v. STEWART 4803
petition on the merits only when it is perfectly clear that the
applicant does not raise even a colorable federal claim.
Adopting a standard that allows a federal court to deny
relief on the merits of an unexhausted claim only when it is
perfectly clear that the petitioner has no chance of obtaining
relief comports with the legislative history of § 2254(b)(2).
The House Report on the AEDPA explained that this provi-
sion “will help avoid the waste of state and federal resources
that now result [sic] when a prisoner presenting a hopeless
petition to a federal court is sent back to the state courts to
exhaust state remedies.” H.R. Rep. 104-23, 1995 WL 56412,
at *9-10 (Feb. 8, 1995).
Moreover, the principle of comity counsels in favor of a
standard that limits a federal court’s ability to deny relief
under § 2254(b)(2) to circumstances in which it is perfectly
clear that the petitioner has no hope of prevailing. A contrary
rule would deprive state courts of the opportunity to address
a colorable federal claim in the first instance and grant relief
if they believe it is warranted. See Rose v. Lundy, 455 U.S.
509, 515 (1982) (noting that “as a matter of comity, federal
courts should not consider a claim in a habeas corpus petition
until after the state courts have had an opportunity to act”);
see also Mercadel, 179 F.3d at 277 (“[T]he concern for com-
ity weighs more heavily when it appears that a state prisoner’s
claim has arguable merit than when it is easily dismissed as
frivolous by a federal court, thus saving a state court from
needless and repetitive litigation.”).
[7] We conclude that the district court erred in denying
Cassett’s petition on the merits under § 2254(b)(2). Cassett
alleged that his due process rights were violated when his
vacated guilty plea was revealed to the jury. Although we do
not express a view on the merits of Cassett’s federal due pro-
cess claim, we cannot say that it is perfectly clear that he
failed to present a colorable federal claim. The Supreme Court
has held that a withdrawn guilty plea is inadmissible to prove
guilt in federal court. Kercheval v. United States, 274 U.S.
220, 223-25 (1927) (“A plea of guilty differs in purpose and
4804 CASSETT v. STEWART
effect from a mere admission or an extrajudicial confession;
it is itself a conviction. Like a verdict of a jury it is conclu-
sive. . . . We think the weight of reason is against the intro-
duction in evidence of a plea of guilty withdrawn.”); see also
Canizio v. New York, 327 U.S. 82, 87 n.2 (1946) (reaffirming
Kercheval’s holding that a withdrawn guilty plea is not
admissible as evidence of guilt in federal court). Likewise, in
Standen v. Whitley, 994 F.2d 1417, 1422 (9th Cir. 1993), we
held that a state trial court’s decision to allow evidence of a
prior guilty plea violated the defendant’s due process rights,
stating that “[a] fair trial cannot be had if the jury must weigh
with all the other evidence, pro and con, the one overwhelm-
ing piece of evidence: the defendant pleaded guilty.” Thus,
we hold that the district court erred in dismissing Cassett’s
petition under § 2254(b)(2).
IV
[8] Because Cassett’s federal habeas petition was filed after
the AEDPA’s effective date of April 24, 1996, the one-year
statute of limitations applies to Cassett’s petition. See Wood-
ford v. Garceau, 538 U.S. 202, 207 (2003). Although Cas-
sett’s petition was timely when it was originally filed, over
eight years have passed since the Arizona Supreme Court
denied review. See 28 U.S.C. § 2244(d)(1) (stating that the
statute of limitations begins running from the date of the final
judgment of a state court). Therefore, if the district court were
to dismiss Cassett’s entire habeas petition, he would be time-
barred under the AEDPA’s one-year statute of limitations
from returning to federal court after attempting to exhaust his
federal due process claim in the Arizona state courts.
[9] The stay-and-abeyance procedure adopted in Kelly v.
Small, 315 F.3d 1063 (9th Cir. 2003), avoids this procedural
dilemma. In Kelly, we recognized “the clear appropriateness
of a stay when valid claims would otherwise be forfeited.” Id.
at 1070. We therefore ordered the district court to consider
staying the petition to permit the petitioner to exhaust his
CASSETT v. STEWART 4805
unexhausted claims and then add them by amendment to his
stayed federal petition. Id. In Rhines v. Weber, 125 S. Ct.
1528, 1535 (2005), the Supreme Court recently held that
when certain conditions are met, a district court must grant a
petitioner’s request for stay and abeyance. Cassett requested
that the district court stay his petition and hold his exhausted
claims in abeyance while he attempted to exhaust his federal
due process claim in the Arizona state courts. The district
court, however, did not address Cassett’s request. Accord-
ingly, on remand, the district court is instructed to consider,
consistent with Rhines, whether to stay the proceedings, hold
in abeyance Cassett’s exhausted petition, and dismiss without
prejudice his unexhausted federal due process claim so that he
can present it to the Arizona state courts.10
REVERSED AND REMANDED.
10
We note one additional matter relating to the district court’s dismissal
of Cassett’s habeas petition. When it reached the merits of Cassett’s due
process claim, the district court noted that all of Cassett’s other claims
already had been dismissed. It appears from the record, however, that one
of his claims remained unresolved.
In its April 2, 2001 Order, the district court dismissed five of Cassett’s
seven claims on the merits. At that time, the court refrained from ruling
on two of Cassett’s claims: his due process claim (claim 1), and his claim
that he was denied effective assistance when his lawyer elicited evidence
of his guilty plea (claim 3(a)). The court noted that it could not yet reach
a determination regarding harmless error for the due process claim or prej-
udice for the ineffective assistance claim because the trial transcript pro-
vided to the court was incomplete.
However, after reviewing the full trial transcript, the district court in its
July 31, 2001 Order only addressed the due process claim. The court then
dismissed Cassett’s petition in its entirety without ruling on his remaining
ineffective assistance claim. It is unclear whether the district court
intended its July 31, 2001 Order to dispose of Cassett’s ineffective assis-
tance claim in addition to his due process claim. Thus, on remand, the dis-
trict court should clarify its ruling with respect to Cassett’s ineffective
assistance claim.