Opinion
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 (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Decided April 26, 1989.
D.Nev.
AFFIRMED.
Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding.
Before KILKENNY, WIGGINS and NOONAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by CA9 Rule 36-3.
Marco Caraffa appeals pro se from the dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 for failure to exhaust state remedies. We review the district court's legal conclusions de novo and its factual findings for clear error, cf. Watson v. Estelle, 859 F.2d 105, 106 (CA9 1988), and we affirm.
Exhaustion of available state remedies is a prerequisite to the filing of a habeas petition in federal court. 28 U.S.C. § 2254(b); Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam). Caraffa has at least two such remedies available to him. First, he could collaterally attack his conviction with a petition for post-conviction relief under Nev.Rev.Stat. §§ 177.315--177.385. Although such a petition will require a showing of good cause as it has been more than one year since his conviction, see Nev.Rev.Stat. § 177.315(3), the appellant's allegations of ignorance of his right to appeal and ineffective assistance of counsel might constitute a showing of good cause. Cf. Brimage v. Warden, 94 Nev. 520, 582 P.2d 375, 376 (1978) (per curiam) (allegations of ineffective assistance of counsel and involuntary guilty plea constituted prima facie showing of good cause).
Second, Caraffa may also pursue habeas relief in the Nevada state courts pursuant to Nev.Rev.Stat. §§ 34.720--34.830. Although such a course ordinarily requires that one first seek post-conviction relief, a showing of good cause would permit the appellant to avoid that procedural hurdle. See Nev.Rev.Stat. § 34.725.
Finally, there is no merit to Caraffa's argument that Nev.Rev.Stat. § 12.015 (which required certification from an attorney concerning the merits of a complaint to be filed by an indigent individual) would bar any review of his claims in the Nevada state courts. The Supreme Court of Nevada has declared that statute to be unconstitutional under both its own and the federal constitutions. Barnes v. Eighth Judicial Dist. Court, 103 Nev. 679, 748 P.2d 483, 487 (1988) (per curiam) (as corrected). We agree with that holding. Cf. Lindsey v. Normet, 405 U.S. 56, 79 (1972) (where state provides for appellate review, unconstitutional to impose burden on particular class of appellants).
AFFIRMED.