Unpublished Disposition, 878 F.2d 385 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 385 (9th Cir. 1989)

Michael Anthony GIPSON, Petitioner-Appellant,v.Robert G. BORG, Warden, Folsom Prison, Respondent-Appellee.

No. 87-5595.

United States Court of Appeals, Ninth Circuit.

Submitted April 24, 1989.* Decided June 23, 1989.

Richard A. Gadbois, Jr., District Judge, Presiding.

Before WRIGHT, MERRILL and BEEZER, Circuit Judges.


MEMORANDUM** 

Michael Anthony Gipson appeals from the district court's dismissal of his habeas corpus petition. The district court dismissed the petition on the ground that Gipson had failed to exhaust available state court remedies. We affirm.

In 1983, Gipson was convicted of first degree burglary and of grand theft auto, and was sentenced to California state prison for a term of 90 months. On direct appeal Gipson urged reversal on, inter alia, the following grounds: 1) fourth amendment violations, 2) ineffective assistance of counsel, and 3) sentencing error. The California Court of Appeal affirmed in an unpublished opinion. The California Supreme Court summarily denied Gipson's petition for review of the Court of Appeal's decision. Gipson, proceeding pro se, filed a habeas action in federal court. 28 U.S.C. § 2254. Gipson's federal habeas action raised three grounds for relief: 1) fourth amendment violations, 2) ineffective assistance of counsel, and 3) due process violations due to disparate sentencing.1  The district court dismissed for failure to exhaust. Gipson timely filed his appeal from the district court's judgment and, after de novo review, we affirm.

The district court correctly held that Gipson's fourth amendment claim was not cognizable in this federal habeas action because Gipson had a full and fair opportunity to raise those claims in his state court proceedings. Stone v. Powell, 428 U.S. 465, 493-94 (1976); Locks v. Sumner, 703 F.2d 403, 408 (9th Cir. 1983).

It is clear that a federal habeas action must be dismissed if the petitioner has failed to exhaust available state court remedies as to each claim raised in the petition. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 522 (1982). "A petitioner may satisfy the exhaustion requirement either by providing the highest state court with an opportunity to rule on the merits of his federal claims or by showing that at the time petitioner filed a habeas petition in federal court, he had no state remedies available and had not deliberately bypassed them." McQuown v. McCartney, 795 F.2d 807, 809 (9th Cir. 1986).

Gipson has failed to present his ineffective assistance claim to the state courts in a full and fair manner. In his direct appeal, Gipson claimed ineffective assistance of counsel due to his trial counsel's alleged error in failing to file a suppression motion. That claim was ruled upon and exhausted in the state appellate courts. Gipson, however, raises in his federal habeas action a different ineffective assistance claim. He now claims that his counsel was ineffective due to failure to object to the sufficiency of the evidence. This claim was neither briefed nor argued to the California courts on direct appeal and, therefore, cannot be deemed to have been fairly presented for a decision on the merits.2  We conclude that this claim of ineffective assistance of counsel was not fairly presented to the state courts for decision. Gipson has state collateral attack remedies in which to raise this new argument. People v. Phillips, 41 Cal. 3d 29, 61 (1985). Accordingly, we hold that this claim has not been exhausted. McQuown, 795 F.2d at 809.

Gipson's last claim for relief is similarly unexhausted. He claims that his due process rights have been violated because his sentence is disparately long. The record reflects that the California Board of Prison Terms has made an initial determination that Gipson's sentence is in fact disparately longer than persons convicted of similar crimes under similar circumstances.3  The California Court of Appeal found that this issue could not properly be considered as there was no trial record on this issue. Gipson was instructed to follow the statutorily mandated procedures for the required reconsideration of his sentence in light of the Board's finding of a disparate sentence. See Cal.Penal Code Sec. 1170. The Court of Appeal stated that further direct review would thereafter be available to Gipson. Because the California Court of Appeal in effect found this claim unripe for review, we conclude that his sentencing claim has not been exhausted.4 

Accordingly, we affirm the district court's dismissal of Gipson's habeas petition on the ground that he failed to exhaust available state court remedies.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 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 Ninth Cir.R. 36-3

 1

We decline to address the claims raised by Gipson for the first time on appeal

 2

Gipson's state court briefs make brief allusion to a sufficiency argument in the argument headings concerning his ineffectiveness claim vis-a-vis the failure to file a suppression motion. The sufficiency "argument" was in no manner fleshed out with citations or argument and cannot be considered as fairly presented to the state court for decision. Even were we to consider his ineffectiveness claim exhausted, we would nonetheless dismiss this appeal as a mixed petition in light of our finding that Gipson has not exhausted his disparate sentence claim. Rose, 455 U.S. at 522

 3

The letter from the Board of Prison Terms so indicating was apparently not of record in Gipson's direct appeal

 4

Because the Court of Appeal found the due process claim unripe for review because the required pre-review procedures had not yet run their course, the California Supreme Court's summary affirmance was not a decision on the merits. Tacho v. Martinez, 862 F.2d 1376, 1379 (9th Cir. 1988); McQuown, 795 F.2d at 809