Unpublished Disposition, 936 F.2d 577 (9th Cir. 1991)

MEMORANDUM^** 

Alan Gregory Flesher, a California state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition without prejudice for failure to exhaust state remedies. Flesher was convicted in 1987 for grand theft and was sentenced to a prison term of seven years and eight months. 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.

The state argues that Flesher has not exhausted two of the claims raised in his habeas petition: whether his guilty plea was voluntary and whether his counsel was ineffective for failing to investigate mitigating evidence.

In his federal petition, Flesher asserted that his guilty plea was involuntary because " [c]ounsel advised petitioner to plead guilty without even informing himself about the facts underlying a statutorial and constitutional challenge to bifurcated charges in the information." In his petition for review to the California Supreme Court, Flesher asserted that his guilty plea was "not the product of a rational mind" because he pleaded guilty "under the throes of internal/external mental pressures and confusion, which jellied his conscious mind." The district court properly concluded that the voluntariness claim raised by Flesher in his federal petition was not presented to the California Supreme Court.

In his federal petition, Flesher also asserted that his counsel rendered him ineffective assistance by failing to investigate mitigating evidence in preparation for the sentencing hearing. He asserts specifically that his counsel should have consulted with him about his background, sought out character witnesses or other character evidence, and argued that "petitioner's clean record, family and community ties showed that petitioner was a fundamentally good person who wrongfully participated in a nonviolent scheme involving personal property." He concludes that this information and his remorse concerning the crime should have been presented to the probation officer so that it could have been placed in the presentence report.

In his petition for review to the California Supreme Court, Flesher argued only that the presentence report was incomplete because it did not include information that he had been married for twenty-three years, had raised five children, had served in the army, had held responsible jobs, and had strong community ties. He did not assert that his counsel failed to investigate or present this information to the probation officer; instead, he argued that " [i]t can hardly be said that petitioner failed to relate these facts to the Probation Officer, Mrs. Gates."

Although Flesher described in his petition to the California Supreme Court the mitigating information which he contends should have been in his presentence report, he does not assert that his attorney was responsible for the omission. Thus, he did not describe the federal legal theory on which his claim is based or give the court the opportunity to "apply controlling legal principles to the facts bearing on his constitutional claim." Id. Accordingly, his claim of ineffective assistance for failure to investigate mitigating evidence is unexhausted.

Flesher's habeas petition also contained other, exhausted claims. Nevertheless, the district court properly dismissed the entire petition because it contained unexhausted claims. Rose v. Lundy, 455 U.S. 509, 510 (1982).

AFFIRMED.