Cousin

MEMORANDUM **

Arizona state prisoner Ronald Eugene Cousin appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his convictions in two separate jury trials for armed robbery, aggravated assault, kidnapping, and burglary in one case, and for armed robbery and attempted first degree murder in another. We granted a Certificate of Appealability (“COA”) on two issues. First, Cousin argues that the district court erred by concluding that most of his claims were procedurally barred by the Arizona Court of Appeals ruling that he failed to comply with Arizona Rule of Criminal Procedure 32.9(c), when it appears that the state appellate court may have overlooked his corrected petition. Second, Cousin argues that his appellate counsel rendered ineffective assistance by failing to argue that trial counsel had been ineffective for failing to bring a suppression motion at his trial. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm denial of the Federal petition.

“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 , 112 S.Ct. 475 ,…

Concurring.

I concur in the result and the reasoning of the majority, except for the holding that the procedural default rule bars Cousin’s habeas claims. As I read the record, Cousin did not default. The state appeals court based its ruling that Cousin defaulted on a factual finding that he had failed to file a corrected state petition after his original petition failed to comply with Arizona Rule of Criminal Procedure 32.9. 1 In actuality, the state docket demonstrates that a corrected petition was filed. This removes the necessary factual predicate for the state court’s ruling. See 28 U.S.C. § 2254 (d)(8) (1995) (presumption of correctness that applies to state court factual findings is overcome where not fairly supported by the record); Francois v. Wainright, 741 F.2d 1275, 1280-81 (11th Cir.1984) (analyzing a state record under the presumption of correctness to determine whether a procedural default took place).

Given the state court’s erroneous factual finding, I would hold that Cousin’s petition is not procedurally barred. The Supreme Court has explained that although a constitutional protection may be denied on state grounds, “it is the province of [federal courts] to…