Unpublished Disposition, 860 F.2d 1089 (9th Cir. 1987)

MEMORANDUM^* 

Monte Lee Post appeals pro se from the dismissal of his petition for a writ of habeas corpus. The district court held that Post had failed to exhaust his state remedies as required by 28 U.S.C. § 2254(b) & (c) (1982). We affirm.

We review the denial of a petition for habeas corpus de novo. Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). Before a state prisoner can petition for federal habeas corpus relief, he must first exhaust all available state remedies. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 275 (1971). The petitioner can satisfy the exhaustion requirement by giving the highest state court a "fair opportunity" to consider each of his claims before he presents it to the federal habeas court. Picard, 404 U.S. at 276; Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). "A claim is fairly presented if the petitioner has described the operative facts and legal theory on which his claim is based." Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986); see also Picard, 404 U.S. at 277-78.

After being convicted in the Los Angeles County Superior Court of assault with a deadly weapon, Post diligently pursued his post-conviction remedies both pro se and with the aid of his court-appointed attorney. On direct appeal, Post claimed that the trial court had committed reversible error in refusing to instruct the jury on unconsciousness as a complete defense. He further alleged that the trial court had abused its discretion in denying probation and had committed errors in sentencing. Appellant's Opening Brief, People v. Post, 2d Crim. No. 43254 (Oct. 7, 1983), 2 Clerk's Record (CR), Post v. Garcia (Traverse), Exhibit 4 at 59, 60-61. After rejecting these contentions, the California Court of Appeal affirmed Post's conviction; the California Supreme Court denied his petition for a hearing.

Post then petitioned the California Supreme Court for a writ of habeas corpus, again contending that the trial court had committed reversible errors both in instructing the jury and in imposing the sentence. He also presented two new claims: that he had been denied effective assistance of counsel at trial and on appeal, and that the trial was unconstitutional for, among other reasons, "denial of right to have a significant issue determined by the jury." Post cited only California cases and the California constitution as authority for his claims. Petition for Writ of Habeas Corpus in the Supreme Court of California, Post v. Yockey, No. 23046 (Apr. 2, 1983), 2 CR, Post v. Garcia (Traverse), Exhibit 4 at 56-57. The California Supreme Court denied his petition.¹ 

After he was released from prison, but while still on parole, Post filed a petition for a writ of habeas corpus in the United States District Court.²  In this petition, Post argued that " [t]he trial court's refusal to instruct on unconsciousness/involuntary intoxication removed a material issue of fact from the jury's consideration, violating petitioner's right to a jury trial under both the California and United States Constitutions." Petition for Writ of Habeas Corpus by a Person in State Custody, Post v. Garcia, No. CV-86-7547-IH(RWR) (Nov. 19, 1986) in 2 CR, Post v. Garcia Objections, Exhibit A at 25. In support of his federal habeas claim, Post argued that the trial court's refusal to give a requested jury instruction relieved the prosecution of its burden of proving every element of the offense beyond a reasonable doubt, thus violating Post's right to due process. Memorandum of Points and Authorities in Support of Petition for Writ of Habeas Corpus, id., Exhibit B at 32; Traverse to Return to Petition for Writ of Habeas Corpus, id. at 13. The district court denied the petition, and Post appealed to this court.

While this appeal was pending, Post submitted an application to the California Court of Appeal to recall the remittitur. This application is a California post-conviction remedy allowing a petitioner to request the Court of Appeal or the California Supreme Court to reassert its jurisdiction over his case. In his application, Post alleged that he had been denied his federal constitutional rights to a trial by jury, to a fair trial and to effective assistance of counsel at both the trial and appellate level. Motion to Recall Remittitur; Memorandum of Points and Authorities, People v. Post, No. 2d Crim. 43254 (Apr. 6, 1987), 3 CR, Exhibit X. After the Court of Appeal denied this application without an opinion, Post petitioned the California Supreme Court to review the denial. This petition was also denied without an opinion.

Our comparison of Post's state and federal court claims indicates that Post failed to exhaust his state remedy for the due process claim he now makes in his federal habeas petition. In state court, Post contended that the trial judge violated state law and the state constitution in refusing to give a requested jury instruction. While a habeas petitioner need only present the substance of his claim in state court, Post's claim of a state law violation is not substantially equivalent to his federal habeas claim that the court denied him due process in violation of the fourteenth amendment of the federal constitution. See Anderson v. Harless, 459 U.S. 4 (1982) (habeas petitioner's claim in state court that the trial court's instruction on the element of malice was erroneous is not the substantial equivalent of his claim in federal habeas court that this error violated his right to due process).

Although Post alleged similar facts in state and federal court, " [i]t is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made." Id. at 6 (citations omitted). Rather, the petitioner must give the state the opportunity "to apply controlling legal principles to the facts bearing upon his constitutional claim." Id. By failing to raise his due process contentions in state court, Post denied the California Supreme Court the opportunity to determine whether his federal constitutional rights were violated. We must, therefore, refuse to hear Post's constitutional claims until they have been reviewed by the highest California court.

Post contends that he raised his federal constitutional claims before the state courts in his Motion to Recall Remittitur and his Petition for Review of the Denial of Remittitur. The court of appeal's denial of an application to recall the remittitur, followed by the state supreme court's denial of a petition for hearing, exhaust a petitioner's state remedies as to his claim of ineffective assistance of appellate counsel. Hayward v. Stone, 496 F.2d 844, 846 (9th Cir. 1974). However, " [i]n all other circumstances, a denial without opinion of an application to recall the remittitur would be a denial on the procedural ground that the incorrect remedy was sought and the exhaustion requirement would not be met." Id. Post's application for a recall of the remittitur, therefore, failed to exhaust his state remedies as to his due process claim. Because a federal habeas court must dismiss petitions containing both exhausted and unexhausted claims, Rose v. Lundy, 455 U.S. 509, 522 (1982), the district court was correct in dismissing Post's habeas corpus petition.

AFFIRMED.