                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 22 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



FRED LAWRENCE ROBINSON,                          No. 05-99007

             Petitioner - Appellant,             D.C. No. CV-96-00669-JAT

  v.
                                                 MEMORANDUM *
DORA B. SCHRIRO, Director,

             Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Arizona
                    James A. Teilborg, District Judge, Presiding

                             Argued December 6, 2007
                            Submitted February 22, 2010
                             San Francisco, California

Before: B. FLETCHER, BERZON and RAWLINSON, Circuit Judges.

       Petitioner Fred Lawrence Robinson appeals the district court's denial of his

petition for habeas corpus. We grant his petition in an opinion filed

contemporaneously with this memorandum. In this memorandum we address

Robinson's remaining claims.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
A.    Claim 1

      Robinson contends that he was denied the effective assistance of counsel at

trial because counsel labored under an actual conflict of interest that Robinson

never personally waived and that adversely affected counsel's performance. The

district court held that this claim was procedurally barred because Robinson had

not exhausted it in state court. Robinson concedes that he did not raise this claim

in any state court appellate or post-conviction proceeding, but he argues Rule

32.2(a)(3) of the Arizona Rules of Criminal Procedure, which requires a µnowing,

voluntary, and intelligent waiver for claims 'of sufficient constitutional

magnitude,' applies to his failure to exhaust.

      A claim is procedurally barred if it was fairly presented in the state court and

dismissed on procedural grounds or if it was not fairly presented and the petitioner

would now be barred under state procedural rules from raising it in state court. In

order for a claim to be fairly presented, it must be apparent to the state court that

the petitioner is raising a federal claim. Picard v. Connor, 404 U.S. 270, 275-77

(1971); Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) amended by 247

F.3d 904 (2001).

      The Supreme Court has held that Arizona state court determinations that a

claim is waived under Rule 32.2(a)(3) are independent of federal law because they


                                           2
do not depend on a federal constitutional ruling on the merits. See Stewart v.

Smith, 536 U.S. 856, 860 (2002). Here, in ruling on Robinson's Second Petition

for Post-Conviction Relief, the Yuma County Superior Court declined to address

the merits of Robinson's conflict of interest claim, holding that Robinson had

waived the claim by failing to raise it on direct appeal or in a previous collateral

proceeding. [SSER 49.] In so holding, the court relied on Rule 32.2(a)(3).

Robinson's claim is therefore procedurally barred.

      Robinson additionally argues that Arizona fundamental error review

exhausted the claim and prevents procedural bar. A claim is not exhausted for

federal exhaustion purposes by Arizona's fundamental error review unless it was

actually presented to or actually considered by the Arizona appellate court. See

Moorman v. Schriro, 426 F.3d 1044, 1057 (9th Cir. 2005). As Robinson did not

raise this claim to, and it was not addressed by, the Arizona Supreme Court on

direct appeal, it is not exhausted by Arizona fundamental error review.

      Robinson's assertion of ineffective assistance of counsel in his first post-

conviction petition may not excuse his failure to raise the claim, because there is

no constitutional right to counsel in state post-conviction proceedings. See

Coleman v. Thompson, 501 U.S. 722, 752-54 (1991).




                                           3
B.    Claim 2

      Robinson claims that his due process rights were violated when the trial

court refused to instruct the jury on the lesser included offense of second degree

murder. The district court held that Claim 2 was procedurally barred because

Robinson had not exhausted it in state court. Robinson concedes that he failed to

include his claim in his opening brief on direct appeal. However, he argues the

claim was exhausted by Arizona's fundamental error review. The Arizona

Supreme Court did not address Claim 2 on direct appeal. We hold, therefore, that

Claim 2 was not exhausted by Arizona fundamental error review. See Moorman,

426 F.3d at 1057 . Nor did the Yuma County Superior Court determine that Claim

2 implicated a right requiring personal waiver under Arizona Criminal Procedure

Rule 32.2(a)(3). See Stewart, 536 U.S. at 860. [SSER 49.] The claim is, therefore,

procedurally barred.

      Robinson argues his failure to raise Claim 2 should be excused because

raising it on direct appeal was futile in light of State v. LaGrand, 734 P.2d 563,

572 (Ariz. 1987). However, even were we to accept futility as an excuse, to the

extent Claim 2 is analogous to the claim rejected in LeGrand, it is meritless. See

Hopµins v. Reeves, 524 U.S. 88, 96-98 (1998).




                                          4
C.    Claim 3

      Robinson contends that Arizona's procurement through payment or promise

of anything of pecuniary value aggravating circumstance violates due process and

is unconstitutionally vague because it provided no notice that 'procurement of a

burglary during which a murder occurred would subject a person to the death

penalty.' [Blue Br. At 58.] The district court held that Claim 3 was procedurally

barred. Robinson concedes that he never raised this claim in state court, but argues

that the claim was nonetheless exhausted by the independent review the Arizona

Supreme Court conducts in all death penalty cases to determine whether the

aggravating and mitigating circumstances were properly found and weighed. See

State v. Fierro, 804 P.2d 72, 81 (Ariz. 1990). We do not find that the Arizona

Supreme Court's independent review exhausted Robinson's claim. See Moorman,

426 F.3d at 1057-58. We also do not find the claim was exhausted by fundamental

error review as it was not addressed by the Arizona Supreme Court. Id. at 1057.

Nor did the Yuma Superior Court determine that Claim 3 implicated a right

requiring personal waiver under Arizona Criminal Procedure Rule 32.2(a)(3). See

Stewart, 536 U.S. at 860. [SSER 49.] The claim is, therefore, barred.




D.    Claim 4


                                         5
      Robinson contends that the prosecution violated due process when it argued

pre-trial that the motive for the murder was to find Robinson's estranged common-

law wife, then argued at sentencing that the motive for the murder was pecuniary

gain. The district court held that Claim 4 was procedurally barred because

Robinson did not allege on direct appeal to the Arizona Supreme Court that the

state engaged in prosecutorial misconduct or violated his due process rights by its

assertion of inconsistent theories and because these claims were substantively

different from the challenges to the applicability of the pecuniary gain aggravating

circumstances that were presented to the Arizona Supreme Court. We agree that

Robinson did not fairly present his claim to the Arizona Supreme Court that his

federal constitutional rights were violated by the inconsistent theories or

prosecutorial misconduct. See Picard, 404 U.S. at 275-77; Crawford, 232 F.3d at

668. Nor was the claim exhausted by Arizona's fundamental error review as it was

not actually presented to or considered by the Arizona appellate court. See

Moorman, 426 F.3d at 1057. We also conclude that the Yuma County Superior

Court did not determine that Claim 4 implicated a right requiring personal waiver

under Arizona Criminal Procedure Rule 32.2(a)(3). See Stewart, 536 U.S. at 860.

[SSER 50.] Claim 4 is, therefore, procedurally barred.




                                           6
      Robinson has not demonstrated cause and prejudice arising from ineffective

assistance because his claim of ineffective assistance on appeal is similarly barred.

See Edwards v. Carpenter, 529 U.S. 446, 452-54 (2000).




E.    Claim 5

      Robinson contends that the Arizona Supreme Court failed to reweigh

properly or to conduct a harmless error review of the remaining aggravating factors

after it invalidated the sentencing court's application of the pecuniary gain

aggravating factor. The district court held that Claim 5 was unexhausted as

Robinson had failed to raise it in his state-court post-conviction proceedings.

Because we remand Robinson's case for a new sentencing hearing in our

companion opinion, we do not reach Claim 5.

      AFFIRMED.




                                           7
                                                                       FILED
Robinson v. Schriro, Case No. 05-99007                                  FEB 22 2010
Rawlinson, Circuit Judge, concurring:                              MOLLY C. DWYER, CLERK
                                                                     U.S . CO U RT OF AP PE A LS

     I concur in the denial of Claims 1 through 4 and would also deny Claim 5.
