Unpublished Disposition, 911 F.2d 738 (9th Cir. 1990)

MEMORANDUM^** 

Martin A. Framilla, 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 state 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.

Here, Framilla filed a habeas petition with the California Supreme Court raising the issue of ineffective assistance of his trial counsel. In response, the California Supreme Court ordered the Los Angeles County Superior Court to appoint counsel, conduct a hearing, and review Framilla's claim on the merits. Framilla has not sought review of any subsequent Superior Court decision in the California Supreme Court. Thus, the Supreme Court has not reviewed the merits of his claim. The district court properly dismissed Framilla's petition without prejudice for failure to exhaust state remedies. Anderson, 459 U.S. at 6.

AFFIRMED.