Phillip J. Harmon v. Charles Ryan, Warden

ORDER

The Memorandum disposition, filed July 26, 1991, is hereby redesignated as a Per Curiam Opinion.

OPINION

Phillip J. Harmon, an Arizona state prisoner, appeals pro se the district court’s sua sponte dismissal of his 28 U.S.C. § 2254 habeas petition for failure to exhaust state remedies. We review de novo, Turner v. Compoy, 827 F.2d 526, 528 (9th Cir.1987), cert. denied, 489 U.S. 1059 , 109 S.Ct. 1327 , 103 L.Ed.2d 595 (1989), and we vacate and remand.

In 1988, Harmon entered a plea of nolo contendere to a charge of attempted kidnapping and was sentenced to five years of probation. In 1989, Harmon admitted that he had violated the terms of his probation and was sentenced to a ten-year term of imprisonment. Harmon appealed to the Arizona Court of Appeals, which affirmed the trial court. Harmon did not file a petition for review in the Arizona Supreme Court. Approximately a year later, however, Harmon filed a petition for special action in the Arizona Supreme Court alleging that his plea was coerced, the sentencing judge was biased, and there was no factual basis for the finding that he had violated the terms of his probation. The Supreme Court dismissed the petition for…