Unpublished Disposition, 911 F.2d 738 (9th Cir. 1990)

MEMORANDUM^** 

Danny Ray Green, a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas petition without prejudice for failure to exhaust state remedies. We have jurisdiction under 28 U.S.C. § 1291 and review the denial de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). 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; Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam). A petitioner satisfies the exhaustion requirement by fairly presenting all claims to the highest state court with jurisdiction to consider the claims. Picard v. Connor, 404 U.S. 270, 276 (1971).

A claim has been fairly presented if the petitioner has described in the state court proceeding both the operative facts and the federal legal theory on which his claim is based. Anderson v. Harless, 459 U.S. 4, 6 (1982); Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986). It is not enough that all the facts necessary to support the federal claim were before the federal court. Anderson, 459 U.S. at 6. The petitioner must give the state the opportunity to "apply controlling legal principles to the facts bearing on his constitutional claim." Id.

If a habeas petition contains both exhausted and unexhausted claims, the federal court may not consider any of the claims but must dismiss the claims without prejudice. Rose v. Lundy, 455 U.S. 509, 510 (1982); Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). The petitioner then has the option of resubmitting the habeas petition with only the exhausted claims or exhausting the unexhausted claims in state court before filing a new petition. Guizar, 843 F.2d at 372.

Here, Green has exhausted his state remedies on the following claims: ineffective assistance of counsel (failure to inform Green of the sentencing consequences of not seeking a jury instruction on a lesser offense), denial of his motion to suppress other crimes evidence, error in jury instructions on other crimes evidence, and denial of his motion to suppress his confession. He has not exhausted his state remedies on the following claims: inaccuracies in police officer's testimony concerning Green's confession due to officer's failure to obtain a signed statement, failure to perform blood tests, insufficient evidence to connect him to the crime, and ineffective assistance of counsel (closing argument). Because Green's petition contains both exhausted and unexhausted claims, the district court properly dismissed the petition without prejudice for failure to exhaust state remedies. Rose, 455 U.S. at 522.

AFFIRMED.