Schwartz v. Terhune

Full title: Robert Deane SCHWARTZ, Petitioner--Appellant, v. Cal A. TERHUNE, Director…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jul 9, 2002

41 F. App'x 913 (9th Cir. 2002)

Opinion

41 Fed.Appx. 913 (9th Cir. 2002) Robert Deane SCHWARTZ, Petitioner--Appellant, v. Cal A. TERHUNE, Director of California Department of Corrections; Bill Lockyer, Attorney General for the State of California, Respondents--Appellees. No. 01-55368. D.C. No. CV-98-02173-DT. United States Court of Appeals, Ninth Circuit. July 9, 2002

Argued and Submitted June 3, 2002.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Petitioner sought habeas corpus relief. The United States District Court for the Central District of California, Dickran M. Tevrizian, J., denied relief. Petitioner appealed. The Court of Appeals held that petitioner failed to exhaust state remedies with respect to claim that his trial counsel withheld evidence.

Affirmed.

Appeal from the United States District Court for the Central District of California Dickran M. Tevrizian, District Judge, Presiding.

Before ALARCON, SILVERMAN and RAWLINSON, Circuit Judges.

MEMORANDUM ^*

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

Petitioner, Robert Schwartz ("Schwartz"), appeals the district court's dismissal of his habeas petition without prejudice. On appeal, Schwartz argues that the district court erred in its determination that ground three of Schwartz's Second Amended Petition was not fully exhausted because it contained an additional claim that was not fairly presented to the state court. See 28 U.S.C. § 2254(b); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995). We agree with the district court. Schwartz's Petition for Review to the California Supreme Court focused on his trial attorney's defense strategy seeking conviction on a lesser included offense, rather than acquittal pursuant to a self-defense theory. Schwartz's third claim for relief in his federal petition added the additional contention that his trial attorney "withheld exculpatory evidence." The assertion that defendant's counsel withheld evidence is a different legal claim than the assertion that defense counsel pursued the wrong theory of defense. The latter claim was presented to the state court; the former was not.

AFFIRMED.