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United States District Court

Eastern District of California 

Larnell Lee Flemmings,

Petitioner, No. Civ. S 04-1384 FCD PAN P

vs. Findings and Recommendations

George Stratton, Warden,

Respondent.

-oOoPetitioner, a state prisoner without counsel, seeks a writ

of habeas corpus. See 28 U.S.C. § 2254. Respondent moves to

dismiss. Petitioner opposes.

Petitioner was convicted of first degree murder, attempted

murder and attempted robbery July 29, 1999. On appeal petitioner

claimed violation of his rights pursuant to Miranda v. Arizona,

384 U.S. 436 (1966). Petitioner claimed his first statement

should not have been admitted because it was the product of

custodial interrogation. Petitioner claimed the second statement

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was taken despite an unequivocal request for counsel and was the

fruit of the first, unwarned statement. The state court of

appeal reversed the conviction for attempted robbery but

otherwise affirmed. 

Petitioner sought review in the California Supreme Court

claiming his first statement was involuntary because the police

exploited petitioner’s mental illness to elicit incriminating

statements and his second statement was taken in violation of

Miranda because his mental illness prevented him from

understanding the warnings. The court summarily denied the

petition. Petitioner did not seek post-conviction relief in

state court.

A district court may not grant a petition for a writ of

habeas corpus unless “the applicant has exhausted the remedies

available in the courts of the State,” or unless there is no

State corrective process or “circumstances exist that render such

process ineffective to protect the rights of the applicant.” 28

U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion

requirement when he gives state courts the opportunity “to pass

upon and correct alleged violations of its prisoners’ federal

rights” in the manner required by those courts. Picard v. Connor,

404 U.S. 270, 275 (1971). A petitioner must fairly present both

the operative facts and the legal theory to “each appropriate

state court (including a state supreme court with powers of

discretionary review), thereby alerting that court to the federal

nature of the claim.” Baldwin v. Reese, 541 U.S. 27, __, 124

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S.Ct. 1347, 1349 (2004); Duncan v. Henry, 513 U.S. 364, 365

(1995); Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004). 

General appeals to constitutional principles, such as due

process, equal protection and the right to a fair trial, are

insufficient to exhaust a claim. See Gray v. Netherland, 518

U.S. 152, 162-63 (1996). A petitioner must identify the

“specific federal constitutional guarantee,” Gray, 518 U.S. at

162-63, even if the facts make a constitutional theory “selfevident.” See Anderson v. Harless, 459 U.S. 4, 7 (1982). A

claim is unexhausted if any state remedy is available. See

O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Roberts v. Arave,

874 F.2d 528, 529 (9th Cir. 1988). An unexhausted petition must

be dismissed. Picard, 404 U.S. at 271.

In his federal application petitioner claims the state trial

court violated his rights by admitting his statements to police

without considering their voluntariness or his understanding of

the Miranda warnings in light of his mental illness. While

petitioner presented these claims to the California Supreme Court

in his petition for review, he did not present them to the

appellate court. 

Petitioner did not fairly present his claim to the state

courts and the petition is unexhausted. See Casey, 386 F.3d at

918.

For these reasons, respondent’s December 29, 2004, motion to

dismiss should be granted and this action should be dismissed for

petitioner’s failure to exhaust available state remedies.

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Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Written objections may be

filed within 20 days of service of these findings and

recommendations. The document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The district

judge may accept, reject, or modify these findings and

recommendations in whole or in part.

Dated: April 26, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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