The opinion of the court was delivered by: William Alsup, United States District Judge
DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The Court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. Petitioner has responded with a traverse. The matter is submitted.
Petitioner pleaded nolo contendere to one count of carjacking shortly before his case was to go to the jury. He was sentenced to prison for eleven years. He did not file any direct appeals. His motion to withdraw his plea in Superior Court was denied, as were his state habeas petitions before the Superior Court, the California Court of Appeal and the Supreme Court of California. He raised before the Supreme Court of California the same claims he raises here.
In his petition petitioner presented three claims: (1) that he received ineffective assistance of trial counsel; (2) that the prosecutor committed misconduct; and (3) that the cumulative prejudice from a variety of trial court errors resulted in a fundamentally unfair trial. In its order to show cause the Court dismissed issues one and three as not cognizable after a guilty plea. As to issue two, the Court noted that petitioner alleged that the prosecutor improperly communicated with jurors, presented weak evidence, used suggestive identification techniques, and removed all people of color from the jury. It concluded that these were not cognizable because they related to pre-plea errors and did not challenge the voluntary and intelligent character of the plea. However, plaintiff also alleged that the prosecutor withheld exculpatory evidence and knowingly presented false evidence. The Court concluded that this allegation was cognizable because it pertained to the voluntary and intelligent character of the plea, and the nature of counsel's advice to enter a guilty plea. See Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995) (claim that guilty plea was not voluntary and intelligent because it was made in the absence of material information withheld by the prosecution may invalidate a guilty plea).*fn1 Thus, the only remaining issue in this case is petitioner's claim of prosecutorial misconduct based on presenting false evidence and withholding exculpatory evidence.
The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499-1500 (9th Cir.), cert. denied, 522 U.S. 93 (1997) ("justice and judicial economy are better served by applying the Act to cases filed after the enactment date."). Under the AEDPA a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d).
Respondent contends that the issue in this case, as framed by the Court, is not exhausted. In the order to show cause the Court concluded that only petitioner's claim of prosecutorial misconduct based on presenting false evidence and withholding exculpatory evidence could go forward. The Court considered that these claims were sufficient to implicate the requirement that a plea be voluntary and intelligent.
Petitioner's state habeas petition in the Supreme Court of California, which is the only proceeding in which he could have exhausted this issue, given that he did not file a direct appeal, was virtually identical in content to the petition which commenced this case. In the federal petition, however, petitioner cites Brady, which he did not do in state court.
The exhaustion-of-state-remedies doctrine reflects a policy of federal-state comity to give the state "the initial `opportunity to pass upon and correct alleged violations of its prisoners' federal rights.'" Picard v. Connor, 404 U.S. 270, 275 (1971) (citations omitted). The exhaustion requirement is satisfied only if the federal claim has been "fairly presented" to the state courts. Id.; Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996). It is not sufficient to raise only the facts supporting the claim; rather, "the constitutional claim . . . inherent in those facts" must be brought to the attention of the state court. See Picard, 404 U.S. at 277. State courts must be alerted to the fact that prisoners are asserting claims under the United States Constitution in order to be given the opportunity to correct alleged violations of federal rights. Duncan v. Henry, 513 U.S. 364, 365-66 (1995); see, e.g., Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (characterizing Picard as requiring "reference to a specific federal constitutional guarantee" in state court; presentation of facts underlying claim not sufficient); Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999) (insufficiency of the evidence claim not mentioning federal Due Process Clause, the 14th Amendment or federal case law did not fairly present the issue to state court); Keating v. Hood, 133 F.3d 1240, 1241-42 (9th Cir. 1998) (order) (claim not exhausted when state supreme court petition for review did not argue a violation of "U.S. Constitution"). A claim is "fairly presented" only if the petitioner either referred to specific provisions of the federal constitution or federal statutes, or cited to federal or state case law analyzing the federal issue. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc) (holding that a federal claim can be fairly presented by citation to state cases analyzing the federal issue); Lyons v. Crawford, 232 F.3d 666, 669-70 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); cf. Wilcox v. McGee, 241 F.3d 1242, 1244 (9th Cir. 2001) (finding petitioner fairly presented his federal claims in state court, where he relied almost entirely on state law in state court, but concluded his argument by stating that both his state and federal double jeopardy rights were violated).
In this case petitioner never contended in state court that his plea was not voluntary and intelligent, nor did he say that acceptance of it violated any federal right. Although he cited to the California Constitution and a federal statute regarding alteration of documents, he did not even mention the federal constitution, nor did he cite any ...