Unpublished Disposition, 935 F.2d 274 (9th Cir. 1991)

MEMORANDUM^** 

William Merritt, a California state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition for failure to exhaust state remedies. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and affirm.

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. O'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, 1083 (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).

Merritt was convicted in the Superior Court of San Diego County of voluntary manslaughter and sentenced to twelve years in prison. He appealed his conviction to the California Court of Appeal, with the assistance of newly appointed counsel. The only issue raised on appeal was whether the trial court abused its discretion in imposing the upper term for the manslaughter conviction. Merritt had written to his appellate counsel requesting that he also raise the issue of ineffective assistance of trial counsel. Merritt's request was refused, and appellate counsel advised Merritt that he could file a pro se petition for writ of habeas corpus in the Superior Court. Merritt instead filed a pro se habeas corpus petition in the California Court of Appeal. The Court of Appeal summarily dismissed the petition, advising Merritt that habeas procedures could not be used as a substitute for appeal. Merritt's conviction was subsequently affirmed by the California Court of Appeal's denial of his direct appeal.

Merritt's appellate counsel then advised Merritt that he did not believe there were sufficient grounds to file a Petition for Hearing with the California Supreme Court, and thus would not be filing any such petition on Merritt's behalf. Merritt then filed a pro se Petition for Review with the California Supreme Court. In the petition for review, Merritt requested the court "grant a hearing and review of the decision rendered by the Court of Appeal, Fourth Appellate District, Division 1, affirming a judgment of conviction and imposition of the upper term of eleven (11) years on voluntary manslaughter and enhanced term of one (1) year for a prior prison term, totalling twelve (12) years imprisonment." The California Supreme Court summarily denied Merritt's Petition for Review without citation or comment.

Merritt then filed a petition for writ of habeas corpus in the district court, raising several grounds for review: (1) suppression of exculpatory evidence and denial of effective assistance of counsel at preliminary hearing; (2) suppression of exculpatory evidence and denial of effective assistance of counsel at the 995/1538.5 hearing; and (3) suppression of exculpatory evidence and ineffective assistance of counsel on appeal.

Based upon our reading of Merritt's Petition for Review, the district court properly determined that the claims raised in Merritt's habeas corpus petition were not presented to the California Supreme Court. Merritt asked only that the California Supreme Court review the California Court of Appeal's decision, which addressed only one issue. He did not specifically set forth any additional issues for the California Supreme Court to address. Moreover, his petition for review did not contain any legal theories to support the issues raised in his habeas corpus petition. Thus, Merritt has failed to give the California Supreme Court a fair opportunity to consider his claims. See Picard, 404 U.S. at 276; Middleton, 768 F.2d at 1086. Therefore, the district court did not err in dismissing his petition for failure to exhaust state remedies. See id.

AFFIRMED.