Flores v. Mahoney

58 F. App'x 346

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 13, 2003
• Docket: No. 01-35897; D.C. No. CV-00-00042-DWM
• Status: Published

Opinion

MEMORANDUM

**

Juan Jose Flores appeals the district court’s dismissal of his § 2254 habeas petition challenging his Montana state conviction for aggravated assault. We have jurisdiction pursuant to 28 U.S.C. § 2253, and affirm.

The record supports the district court’s finding that Flores proeedurally defaulted his federal fair trial claim by failing to fairly present it to the Montana Supreme Court. See Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir.2000) (“[T]he petitioner must make the federal basis [of the claim] explicit either by citing federal law or the decisions of federal courts, even if the federal basis of a claim is “self-evident,” or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds.”) (internal citations omitted) as amended by 247 F.3d 904 (9th Cir.2001); see also Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir.1996) (stating that a petitioner has not exhausted his state remedies as to a federal claim, if in his state petition he has merely asserted, without reference to federal constitutional law, that he was denied a fair trial).

Alternatively, Flores contends that even if the fair trial issue was not fairly presented, the Montana Supreme Court sua sponte considered the claim as arising under the fair and impartial trial clause of the U.S. Constitution. A review of the Montana Supreme Court’s decision in the matter does not support this contention.

AFFIRMED.

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 Circuit Rule 36-3.