Unpublished Disposition, 867 F.2d 613 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 613 (9th Cir. 1987)

Harold A. HENRY, Petitioner-Appellant,v.Otis THURMAN, et al. Respondent-Appellee.

No. 88-2605.

United States Court of Appeals, Ninth Circuit.

Submitted*  Jan. 26, 1989.Decided Jan. 30, 1989.

Before HUG, SCHROEDER and LEAVY, Circuit Judges.


MEMORANDUM** 

Harold A. Henry, a state prisoner, appeals pro se the district court's dismissal of his writ of habeas corpus. The district court held that Henry failed to exhaust his state remedies as required by 28 U.S.C. § 2254(b) and (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). 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, 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. A petitioner can also satisfy the exhaustion requirement by showing that at the time the petitioner filed the habeas petition in federal court no state remedies were available to the petitioner and that the petitioner has not deliberately by-passed the state remedies. Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982).

After being convicted in the San Joaquin County Superior court of two counts of robbery and a finding of having taken property in the excess of $25,000 pursuant, to which he was sentenced to seven years in prison on September 3, 1985, Henry directly appealed his conviction with the aid of his court-appointed counsel. On direct appeal in the California Court of Appeals, Henry claimed that the Superior Court erred in (1) denying Henry's motion to disqualify the prosecution's key witness, Ira Abernathy, on the ground of mental incompetence, (2) denying his motion to have Abernathy submit to a psychiatric evaluation to determine whether Abernathy was indeed competent, (3) failing to strike the pre-sentence investigation report and by considering irrelevant and prejudicial material in imposing sentence, (4) imposing a sentence which included a consecutive enhancement of four months to the subordinate term, (5) allowing the prosecutor to file a second amended information alleging an enhancement which was not supported by evidence adduced at the preliminary examination, and (6) fashioning an exclusionary remedy for the violation of Henry's sixth amendment rights. Henry further claimed on direct appeal that the evidence submitted at trial was insufficient to support his robbery conviction pursuant to Cal.Penal Code Sec. 211 and the jury's finding of an enhancement pursuant to Cal.Penal Code Sec. 12022.6(a), and that the government's amended complaint was unconstitutionally vague and failed to provide him with adequate notice of the charges against him. The California Court of Appeal affirmed Henry's conviction.

Henry then petitioned the California Supreme Court for review of the Court of Appeal decision, raising only three of the issues that were previously presented to the Court of Appeal.1  He also presented one new claim: that there was insufficient evidence to support his conviction because the government's theory required the jury to speculate and to reject the testimony of its principal witness, Abernathy, with respect to the enhancement issue. The California Supreme Court denied his petition. Henry did not file a habeas corpus petition or seek any other post-conviction relief at the state court level.

On September 3, 1987, Henry filed a Sec. 2254 habeas corpus petition in the United States District Court, Central District of California, which was later transferred to the Eastern District of California. In his habeas petition, Henry asserted three claims which had not been raised in the state court: (1) ineffective assistance of counsel, (2) double jeopardy, (3) conspiracy against him by his defense attorney and the government. It is unclear whether his fourth claim, prosecutorial misconduct, had been raised in state court.

Our comparison of Henry's state and federal court claims indicates that Henry failed to exhaust his state remedies for all of the claims he makes in his federal habeas petition. Moreover, Henry has not alleged that state remedies were unavailable to him at the time he filed his Sec. 2254 petition. See Batchelor v. Cupp, 693 at 862. Therefore, the district was correct in dismissing Henry's habeas corpus petition. See Rose v. Lundy, 455 U.S. at 522.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The three claims that Henry brought to the California Supreme Court that were previously before the Court of Appeals were (1) whether the appropriate legal standard was applied in determining the competence of Abernathy, (2) whether Henry was entitled to an independent psychiatric evaluation on the issue of Abernathy's competence, and (3) whether letters attached to and incorporated in a probation officer's sentencing report were prejudicial to Henry