Schwartz v. Terhune

41 F. App'x 913

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 9, 2002
• Docket: No. 01-55368; D.C. No. CV-98-02173-DT
• Status: Published

Opinion

MEMORANDUM

*

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.

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.