Webb v. Stewart

91 F. App'x 591

Opinion

MEMORANDUM

**

Richard L. Webb appeals pro se the district court’s order dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253, and we affirm.

Webb’s § 2254 petition alleges that the admission of impeachment and hearsay statements at his trial violated the Fifth, Sixth, and Fourteenth Amendments, and that the jury was improperly coerced in violation of the Sixth and Fourteenth Amendments. The district court concluded that these claims were procedurally defaulted and dismissed the petition.

A federal court cannot grant habeas relief unless the petitioner demonstrates that he or she “has exhausted the remedies available” in state court, or that state remedies are no longer available or effective. 28 U.S.C. § 2254(b)(l)(A)-(B). Section 2254 requires petitioners to “fairly present” their federal claims to the state courts to “give state courts a fair opportunity to act on their claims.” O’Sullivan v. Boerckel, 526 U.S. 838, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (emphasis removed). A petitioner “fairly presents” a federal claim to the state courts “only if he characterized the claims he raised in state proceedings specifically as federal claims.” Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir.2000).

Although we have held that “citation to a state case analyzing a federal constitutional issue” may establish exhaustion, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir.2003) (en banc), Webb’s citation in state court to State v. Cruz, 128 Ariz. 538, 627 P.2d 689 (Ariz.1981), did not “fairly present” his claims for improper admission of impeachment and hearsay statements because Cruz concerns admission of hearsay evidence under state law. See id. at 691.

Likewise, Webb’s citation of Wissel v. United States, 22 F.2d 468 (2nd Cir.1927), was insufficient to exhaust his jury coercion claim since Wissel did not discuss jury coercion under the Sixth Amendment, and Webb cited the case for “the general principle” that a judge must not coerce a jury’s verdict and structured his analysis around state law jury coercion standards. Because Webb did not specifically characterize his jury coercion claim before the state court as a federal claim, the district court properly dismissed it as unexhausted. See Lyons, 232 F.3d at 670.

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.