Unpublished Disposition, 867 F.2d 614 (9th Cir. 1989)

MEMORANDUM^** 

William T. Wilson, a California state prisoner, appeals pro se the district court's dismissal of his petition for a writ of habeas corpus on the grounds that Wilson had failed to exhaust state remedies. We review the district court's dismissal of a petition for habeas corpus relief de novo. Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). We affirm.

A state prisoner must exhaust all available state court remedies before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b); Duckworth v. Serrano, 454 U.S. 1, 3 (1981). Ordinarily, every claim raised by the petitioner must be exhausted before the federal court may consider the merits of the petition. Rose v. Lundy, 455 U.S. 509, 510 (1982). A petitioner has satisfied the exhaustion requirement if he has given the state court a fair opportunity to consider his claim before he presents it to the federal habeas court. Picard v. Connor, 404 U.S. 270, 276 (1971).

In his petition, Wilson listed six grounds for habeas corpus relief: (1) prosecutorial misconduct, (2) excessive pretrial bail in violation of the eighth amendment, (3) his confinement constituted slavery or involuntary servitude in violation of the thirteenth amendment, (4) the jury verdict was not supported by the evidence and (6) the judge committed errors and omissions in instructing the jury. Wilson did not present his second claim, of excessive bail, or his third claim, that his confinement constituted involuntary servitude, in his appeal to the California state court of appeals or in his petition for review by the California Supreme Court.

Wilson contends that by raising other challenges to the fairness of his conviction and subsequent imprisonment in his petition to the California Supreme Court, he gave that court a fair opportunity to hear his thirteenth amendment claim. Although a petitioner need not have cited book and verse of the federal constitution in order to have fairly presented a claim, he must describe the operative facts and legal theory on which his claim is based. Tamapua v. Shimoda, 796 F.2d 261, 262-63 (9th Cir. 1986). A thirteenth amendment claim cannot be implied from other challenges to a conviction or imprisonment. Accordingly, Wilson did not give the state court an opportunity to hear his thirteenth amendment claim.

Wilson also contends that he presented his excessive pretrial bail claim by filing a motion for release pending his appeal in the state court. However, pretrial release and release pending appeal are two completely different issues.

Finally, Wilson contends that there are no available state remedies because he only has a few months left on his sentence and there will not be time to litigate these claims in state court. If Wilson is concerned with inadequate time, he has the option of proceeding in federal court by resubmitting his petition presenting only his exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510 (1982).

As the petition contains both exhausted and unexhausted claims, the district court properly chose to dismiss the petition. See id. Following dismissal, Wilson has the option of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court. See id.

AFFIRMED.