Submitted April 29, 1999

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 (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court for the District of Arizona Earl H. Carroll, District Judge, Presiding.

Before ALARC§N, CANBY, and TASHIMA, Circuit Judges.

MEMORANDUM

Najm Al Den Ameen, formerly known as Doub Binford, appeals after the district court denied his 28 U.S.C. § 2254 petition on the grounds that three claims were procedurally defaulted and one was not cognizable. In a pre-AEDPA case such as this, we review the district court's legal conclusions de novo and its factual findings for clear error. See Jones v. Meyer, 899 F.2d 883, 884 (9th Cir.1990). We affirm in part, vacate in part, and remand.

The district court concluded that Ameen's ineffective assistance of trial counsel claim and invalid plea claim were unexhausted and now procedurally defaulted. Focusing on Ameen's failure to exhaust these claims in his state post-conviction proceedings, we previously certified two questions to the Arizona Supreme Court in order to determine whether Ameen's failure to petition for review after his Rule 32 petition was denied could be excused. See Binford v. Rhode, 116 F.3d 396 (9th Cir.1997). In supplemental briefing filed in this court after the Arizona Supreme Court issued its decision addressing our questions, Ameen insists his ineffective assistance of trial counsel and invalid plea claims actually were exhausted on direct appeal. We agree.

In this circuit, ordinarily a claim must be presented to the state's highest court in order to satisfy exhaustion. See Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir.1982)); cf. Boerckel v. O'Sullivan, 135 F.3d 1194, 1199 (7th Cir.) (petition for discretionary review to state's highest court not necessary for exhaustion), cert. granted, 119 S.Ct. 508 (1998). However, in this case the parties agree that Ameen's failure to petition the Arizona Supreme Court for review on direct appeal is excused because his direct appeal was decided during the so-called "Harmon window." See Harmon v. Ryan, 959 F.2d 1457, 1463 (9th Cir.1992); see also Thomas v. Goldsmith, 979 F.2d 746, 750 (9th Cir.1992).

The State nonetheless argues that Ameen's ineffective assistance of trial counsel and invalid plea claims are unexhausted because: (1) on direct appeal neither counsel (who filed an Anders brief ) nor Ameen (who did not file a pro se brief) expressly presented either claim to the state court of appeals; and (2) a state court's review for fundamental error is insufficient to satisfy exhaustion.

Ameen, on the other hand, maintains it is clear that both claims actually were considered and rejected by the Arizona Court of Appeals because: (1) before affirming Ameen's conviction, the Arizona Court of Appeals noted that the trial court had determined that Ameen's plea was factually supported and entered knowingly, intelligently, and voluntarily; and (2) when Ameen tried to raise these same claims on appeal from his resentencing, the Arizona Court of Appeals expressly stated that "[b]oth issues have been argued, and disposed of, in Appellant's previous appeal and his petition for post-conviction relief."

In Poland v. Stewart, 117 F.3d 1094, 1105 (1997), and Martinez-Villareal v. Stewart, 80 F.3d 1301, 1306 (9th Cir.1996), we held that a state court's review for fundamental error is insufficient to satisfy exhaustion. We are not convinced that either Poland or Martinez-Villareal controls here for neither involved, nor addressed, whether fundamental error review is sufficient to exhaust claims in cases where counsel filed an Anders brief during the "Harmon window." However, we need not decide that question here. Unlike the cases where petitioners contend that exhaustion is satisfied because the state court implicitly reviewed the claim when it reviewed the record for fundamental error, here the state court later stated expressly that the claims at issue were actually raised and rejected in Ameen's Anders appeal. A state court's actual consideration of a claim satisfies exhaustion. See Sandstrom v. Butterworth, 738 F.2d 1200, 1206 (11th Cir.1984) ("[t]here is no better evidence of exhaustion than a state court's actual consideration of the relevant constitutional issue"); see also Walton v. Caspari, 916 F.2d 1352, 1356-57 (8th Cir.1990) (state court's sua sponte consideration of an issue satisfies exhaustion). To the extent the district court concluded that these two claims were unexhausted and now procedurally defaulted, the district court's judgment is vacated.

The district court properly concluded that Ameen's ineffective assistance challenge against state post-conviction counsel fails to state a federal claim. See Coleman v. Thompson, 501 U.S. 722, 752 (1991) (no federal constitutional right to the effective assistance of counsel in state post-conviction proceedings).

Ameen failed to make any argument on appeal concerning his double jeopardy claim. Accordingly, we deem it abandoned. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.1993).

AFFIRMED in part, VACATED in part, and REMANDED for further proceedings consistent with this disposition.