Unpublished Disposition, 931 F.2d 60 (9th Cir. 1991)

MEMORANDUM^** 

Ernie Lee Hoch, a former Montana state prisoner now on probation,¹  appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we affirm.

A state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings 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); Lindquist v. Gardner, 770 F.2d 876, 877 (9th Cir. 1985). 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.

Under Montana law, a criminal defendant may make one peremptory challenge to the judge assigned to his criminal proceedings and obtain a substitute judge. See Mont.Code Sec. 3-1-802 (1985). During his arraignment proceedings, Hoch, appearing pro se, filed a motion to disqualify the trial judge initially assigned to his criminal proceedings on the ground that the trial judge was a defendant in a civil rights action Hoch was pursuing. The trial judge disqualified himself and designated a second judge to preside. Hoch's attorney then sought peremptory disqualification of the second judge, who denied the challenge on the ground that Hoch had exercised the one peremptory challenge allowed him under Mont.Code Sec. 3-1-802 by moving to disqualify the first judge.

Hoch asserts two claims in his federal habeas petition arising out of these circumstances: (1) the state courts improperly held him to the standards of a licensed attorney when ruling upon his motion to disqualify his trial judge, and (2) the state courts denied him due process because they erred under Montana state law in construing his motion to disqualify his trial judge as a peremptory challenge rather than a challenge for cause.

Although Hoch has exhausted the second claim, his first claim has never been presented to any Montana state courts. Moreover, his second claim is based upon an allegedly defective interpretation of state law by the state court and does not state a claim cognizable by writ of federal habeas corpus. See 28 U.S.C. § 2254; Engle v. Isaac, 456 U.S. 107, 119 (1982); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). If Hoch has any claims that this interpretation denied him a fair trial because the judge who ultimately presided over his trial was biased, he has not presented those claims to the Montana Supreme Court. Although the facts necessary to support any federal claim may have been before the state court, the state court must be given the opportunity to evaluate any constitutional claims. Anderson, 459 U.S. at 6. Accordingly, the district court properly dismissed the habeas petition because it contained unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 510 (1982).² 

AFFIRMED.