Gary Paul Cassett v. Terry L. Stewart, Director

Petitioner Gary Paul Cassett (“Cassett”) appeals from the district court’s dismissal with prejudice of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 . In a previous appeal, we “remand[ed] to the district court with directions to dismiss the petition because Cassett failed to exhaust his federal due process claim in the Arizona state courts.” Cassett v. Stewart (Cassett I), 49 Fed.Appx. 154, 154 (9th Cir.2002) (unpublished disposition). On remand, the district court dismissed Cas-sett’s habeas petition with prejudice because it concluded that “the Court of Appeals failed to note that Petitioner’s claims have been procedurally defaulted in the state courts and are technically exhausted.” Further, the district court held in the alternative that even if Cassett’s claim is not exhausted, dismissal with prejudice is appropriate under 28 U.S.C. § 2254 (b)(2) because the district court “has determined that the claim is without merit.” Accordingly, the district court denied Cassett’s petition both as procedurally defaulted and on the merits.

In this appeal, Cassett argues that the district court exceeded the scope of our mandate by reaching the issue of procedural…