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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

LARRY JOHN FARRIS III, 

Petitioner, No. CIV-04-1758 GEB KJM P

vs.

GEORGE STRATTON, Acting Warden, 

Respondent. FINDINGS AND RECOMMENDATIONS

 /

Petitioner is a state prison inmate proceeding with counsel with a petition for a

writ of habeas corpus under 28 U.S.C. § 2254. Petitioner raises two grounds in the petition for a

writ of habeas corpus filed in this court: (1) petitioner received ineffective assistance of counsel

when his attorney did not tell him that he could file a meritorious motion to suppress critical

evidence and this incompetent advice rendered his guilty plea involuntary and unknowing; and

(2) petitioner was deprived of effective assistance of counsel when the trial court, following a

constitutionally insufficient hearing, compelled him to proceed with his court-appointed lawyer

with whom petitioner had become embroiled in irreconcilable conflict. In his answer, respondent

alleges that petitioner’s second claim is unexhausted. Answer at 2, 32-35. 

The exhaustion of state court remedies is a prerequisite to the granting of a

petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion

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requirement by providing the highest state court with a full and fair opportunity to consider all

claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971);

Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir 1986). The state court has had an opportunity

to rule on the merits when the petitioner has fairly presented the claim to that court. This “fair

presentation” requirement is met where the petitioner has described the operative facts and legal

theory on which his claim is based. Picard, 404 U.S. at 277-78. Without factual development,

the state courts have been denied the “opportunity to consider the federal constitutional

implications of alleged facts . . . of which it was unaware.” Kelly v. Small, 315 F.3d 1063, 1069

(9th Cir. 2002), cert. denied, 538 U.S. 1042 (2003). 

The United States Supreme Court has held that a federal district court may not

entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with 

respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982). A mixed petition

containing both exhausted and unexhausted claims must be dismissed. Id.

Respondent has provided a copy of the petition for review, No. C044650, that

petitioner filed in the California Supreme Court. In that petition, Petitioner alleges:

Petitioner filed a pretrial Marsden Motion on the grounds of

ineffective assistance of counsel and lack of communication with

counsel, which was denied. At the Marsden Motion, counsel

admitted that he had done nothing with the case because he was

looking for an early disposition. Petitioner contends that he was the

victim of ineffective assistance of counsel which deprived

Petitioner of his rights under California Constitutional and

Statutory law and, the Fourth, Fifth, Sixth, Eighth and Fourteenth

Amendments to the U.S. Constitution.

Lodged Document No. 7 (Petition for Review in California Supreme Court) at 2.

On October 12, 2001, Petitioner makes a “Marsden motion.” Said

motion is heard and denied.

Lodged Document No. 7 (Petition for Review in California Supreme Court) at 7.

A thorough description of the operative facts before the highest state court is

necessary before a federal court can find that a federal habeas petitioner gave the state courts a

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 Although petitioner’s counsel does not address Kelly, he does cite to one post-Kelly

case, Lounsbury v. Thompson, 374 F.3d 785 (9th Cir. 2004), applying the fair presentation

standard. In Lounsbury, petitioner’s claim in the state petition apparently was articulated this

way: “[D]efense counsel below argued that [Lounsbury] was not able to aid and assist. He clearly

suffered from a mental condition." 374 F.3d at 788. Lounsbury is distinguishable not only

because the nature of Lounsbury’s claim, that he was not competent to stand trial, on its face

provided the essential fact to present the substance of the claim to the state courts; its outcome

also took account of the Oregon Rules of Appellate Procedure applicable to Lounsbury’s state

petition, which limit factual development in state petitions. Where, as here, the claim is that the

court improperly denied a Marsden motion in light of counsel’s ineffective assistance, and the

claim is submitted to the California courts, it is not enough to say simply that the Marsden

motion should have been granted because trial counsel did “nothing.” Rather some explanation

of specifically what formed the basis for the conflict between client and counsel is required.

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fair opportunity to apply controlling legal precedent to the facts of petitioner’s Constitutional

claim. Kelly, 315 F.3d at 1069.1 There is no thorough description of the operative facts in the

petition. Petitioner’s second claim is unexhausted. Accordingly, because this petition is a mixed

petition, containing one exhausted and one unexhausted claim, it must be dismissed.

Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s petition for a

writ of habeas corpus be dismissed without prejudice and petitioner be given the option of filing

an amended petition containing only exhausted claims, with any such amended petition to be

filed within thirty days of the district court’s adoption of these findings and recommendations. 

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within five days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: August 12, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

farr1758.157

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