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WILLIAM DUNCAN v. ROBERT E. HENRY

decided: January 23, 1995.

WILLIAM DUNCAN, WARDEN
v.
ROBERT E. HENRY



ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

Author: Per Curiam

Per Curiam.

Respondent, a rector and dean of a church day school, was tried and convicted in state court of sexually molesting a 5-year-old student. At trial, respondent objected to testimony by the parent of another child who claimed to have been molested 20 years previously. His objection was based on Cal. Evid. Code Ann. ยง 352 (West 1966). On direct appeal, he pursued his evidentiary objection and requested the appellate court to find that the error was a "miscarriage of justice" under the California Constitution. California applies this provision in determining whether or not an error was harmless. People v. Watson, 46 Cal. 2d 818, 299 P.2d 243 (1956). The California Court of Appeal found the error harmless and affirmed respondent's conviction. People v. Henry, No. CR23041 (2d Dist. 1990), App. D to Pet. for Cert. 6.

Respondent then filed a petition for writ of habeas corpus in federal court, alleging that the evidentiary error amounted to a denial of due process under the United States Constitution. The District Court granted the petition and the Court of Appeals for the Ninth Circuit affirmed. Henry v. Estelle, 33 F.3d 1037 (1994). The court held that respondent had exhausted his state remedies even though he had not claimed a violation of any federal constitutional right in the state proceedings:

"In his direct appeal in state court, Henry did not label his claim a federal due process violation; he argued rather that Hackett's testimony was erroneously admitted because irrelevant and inflammatory, and that its admission resulted in a 'miscarriage of justice' under the California Constitution. . . . However, to state a federal due process claim it is not necessary to invoke 'the talismanic phrase "due process of law"' or cite 'book and verse on the federal constitution'. . . ." Id., at 1040 (citations omitted).

In Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971), we said that exhaustion of state remedies requires that petitioners "fairly present" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. Accord, Anderson v. Harless, 459 U.S. 4, 74 L. Ed. 2d 3, 103 S. Ct. 276 (1982).

Picard and Harless control the outcome in this case. Respondent did not apprise the state court of his claim that the evidentiary ruling of which he complained was not only a violation of state law, but denied him the due process of law guaranteed by the Fourteenth Amendment. The failure is especially pronounced in that respondent did specifically raise a due process objection before the state court based on a different claim--that the pleading was uncertain as to when the offense occurred. App. D to Pet. for Cert. 8. The California Court of Appeal analyzed the evidentiary error by asking whether its prejudicial effect outweighed its probative value, not whether it was so inflammatory as to prevent a fair trial. 33 F.3d at 1046. As recognized by dissenting Judge Brunetti, those standards are no more than "'somewhat similar,'" id., at 1047, not "virtually identical" as claimed by JUSTICE STEVENS. Post, at 6. Both Picard and Harless emphasized that mere similarity of claims is insufficient to exhaust. Picard, supra, at 276; Harless, supra, at 6. The state court, when presented with respondent's claim of error under the California Evidentiary Code, understandably confined its analysis to the application of state law.

Accordingly, the petition for a writ of certiorari is granted and the judgment of the Court of Appeals is

Reversed.

JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER join, concurring in the judgment.

I concur in the judgment because respondent's "miscarriage of justice" claim in state court was reasonably understood to raise a state law issue of prejudice, not a federal issue of due process. Consequently, no federal claim was "fairly presented to the state courts" within the meaning of Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971).

JUSTICE STEVENS, dissenting.

Today's opinion sets forth a new rule of law that is a substantial departure from our precedents. In my opinion, it is unwise for the Court to announce a new rule without first hearing argument on the issue. The Court's opinion is especially distressing because it creates an exacting pleading requirement that serves no legitimate purpose in our habeas corpus jurisprudence.

In Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971), after full briefing and argument, the Court issued an opinion carefully explaining the rule that a state prisoner must exhaust his state-court remedies before applying for a federal writ of habeas corpus. We held that the exhaustion requirement is satisfied when "the federal claim has been fairly presented to the state courts." Id., at 275. We made it clear, however, that the prisoner need not place the correct label ...


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