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finding that “emotional control” and “threats to deny the [defendant spouse] custody of his children” were insufficient to render counsel's failure to present evidence of battered woman's syndrome unconstitutional, because the case was distinguishable from those involving substantial physical violence
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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 (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted May 14, 1998.
Appeal from the United States District Court for the District of Arizona, Earl H. Carroll, District Judge, Presiding.
Before LAY, KOZINSKI, and T.G. NELSON, Circuit Judges.
Honorable Donald P. Lay, Senior United States Circuit Judge for the Eighth Circuit Court of Appeals, sitting by designation.
MEMORANDUM *
Because both sides agree that the district court incorrectly concluded that Walton procedurally defaulted his claim of ineffective assistance of sentencing counsel, we reverse the district court's dismissal of that claim and remand for consideration on the merits.
Assuming, without deciding, that conflict of counsel in state habeas proceedings can constitute cause for failing to raise an issue in a post-conviction relief petition, it is clear from the district court's record that Walton was adequately represented by unconflicted counsel in his state habeas petition. On July 26, 1989, Walton moved to dismiss James H. Kemper of the Maricopa Public Defender's Office so that he could argue that Kemper was ineffective as trial counsel. The motion was granted the same day, and the superior court appointed John C. Williams to represent Walton. On August 2, 1989, the superior court summarily dismissed Walton's petition for post-conviction relief, a ruling adverse to Walton on the three claims that had been previously raised by Kemper.
This series of events would seem unfair to Walton were it not for the fact that on August 25, 1989, within thirty days of the dismissal, Williams filed a notice with the superior court that he "has failed to discover any additional colorable claims for relief and therefore will not file a supplement to the Petition for Post-Conviction Relief." This notice reveals two facts. First, Williams had reviewed Walton's case and concluded that there were no colorable claims to be raised beyond the three that Kemper had previously presented in the state habeas petition. Second, Williams obviously believed that had he discovered additional colorable claims, such as ineffective assistance of trial counsel, he would have been able to raise them in an amended petition for post-conviction relief. These facts convince us that Walton was represented by unconflicted counsel during his state habeas proceedings.
Regarding the remaining claims in Walton's petition, the district court correctly concluded that they were without merit or had been procedurally defaulted. Appellate counsel is not ineffective simply for failing to raise every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir.1989). "Under Arizona law, fundamental error review does not prevent subsequent procedural preclusion." Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir.1996). See also Poland v. Stewart, 117 F.3d 1094, 1105-06 (9th Cir.1997).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
No costs allowed.