Unpublished Disposition, 867 F.2d 613 (9th Cir. 1989)

MEMORANDUM^** 

Richard Calvin Eckhardt appeals pro se the dismissal of his petition for a writ of habeas corpus. The district court held that Eckhardt had failed to exhaust his state remedies as required by 28 U.S.C. § 2254(b) & (c). 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). 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). 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 v. Connor, 404 U.S. 270, 276 (1971); 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.

Eckhardt was convicted of sexual assault under Ariz.Rev.Stat. Sec. 13-1406(B). He filed a "special action" in Arizona Superior Court seeking declaratory relief. In his "special action" complaint, he argued that the Director of the Department of Corrections denied him release credits he was entitled to under Ariz.Rev.Stat. Sec. 41-1604.07. The superior court granted summary judgment in favor of the respondents. The Arizona Court of Appeals affirmed the superior court and the Arizona Supreme Court denied Eckhardt's petition for review.

In his "special action" complaint, his Memorandum in Support of Special Action, his brief to the Arizona Court of Appeals, and his petition for review to the Arizona Supreme Court, Eckhardt raised state statutory arguments to support his contention that his conviction under Ariz.Rev.Stat. Sec. 13-1406(B) did not preclude him from receiving release credits under Ariz.Rev.Stat. Sec. 41-1604.07. In his Memorandum in Support of Special Action, Eckhardt argued that he had a liberty interest in the release credits. In his brief to the Arizona Court of Appeals, Eckhardt made a statement that the denial of release credits denied him due process and violated his fourteenth amendment equal protection rights. Eckhardt never mentioned due process or equal protection in his petition for review to the Arizona Supreme Court.

After the Arizona Supreme Court denied his petition for review, Eckhardt filed a petition for a writ of habeas corpus in federal district court. In this petition, Eckhardt raised his state statutory claim and he also contended that " [t]he erroneous depreivation [sic] of earned release credits ha [s] caused [him] to be denied both due process and equal protection of law." The district court found that Eckhardt had failed to exhaust his state remedies and denied his petition. Eckhardt appealed to this court.

Our comparison of Eckhardt's state and federal claims shows that Eckhardt raised his state statutory arguments before the state superior court, court of appeals and supreme court. Eckhardt, therefore, exhausted those claims. If the appellant has a claim for denial of due process, equal protection or any other right guaranteed by the law of the United States he has not exhausted it. The only claims presented in the Arizona Supreme Court raised issues of state, not federal law. Accordingly, the district court was correct in dismissing Eckhardt's habeas corpus petition.

AFFIRMED.