Crowell

MEMORANDUM *

The parties agreed at oral argument that Crowell’s claim is unexhausted rather than procedurally-barred. Because Crowell was sentenced in 1988, and has not yet filed a petition for state post-conviction relief, Ariz. R.Crim. P. 32.4’s time limit does not yet apply to him. See 171 Ariz. XLIV (1992) (order of the Arizona Supreme Court amending Rule 32.4 to provide that the Rule’s time limits “shall be inapplicable to a defendant sentenced prior to September 30, 1992 who is filing his first petition for post-conviction relief.”). See also Moreno v. Gonzalez, 192 Ariz. 131 , 962 P.2d 205, 209 (Ariz.1998). Thus, Crowell is not barred from seeking an evidentiary hearing on his ineffective assistance of counsel (IAC) claim in Arizona state court as required by State v. Carver, 160 Ariz. 167 , 771 P.2d 1382, 1390 (Ariz. 1989). We therefore reverse the district court’s dismissal of Crowell’s claim as procedurally-barred.

Because Crowell’s IAC claim is unexhausted, and assuming that Crowell does not wish to delete this unexhausted claim, the petition may not be decided by the federal district court on remand at this time. See 28 U.S.C. § 2254 (b)(1); Rose v. Lundy, 455 U.S.…