Hubert A. Roman v. Wayne E. Estelle

The district court dismissed petitioner’s habeas corpus action on the ground that petitioner had failed to exhaust his state court remedies. The district judge relied on Castille v. Peoples, 489 U.S. 346 , 109 S.Ct. 1056 , 103 L.Ed.2d 380 (1989), holding that a “petition for allocatur” to the Pennsylvania Supreme Court was not a “fair presentation” of a petitioner's claims to the Pennsylvania courts.

In Turner v. Compoy, 827 F.2d 526 (9th Cir.1987), cert. denied, 489 U.S. 1059 , 109 S.Ct. 1327 , 103 L.Ed.2d 595 (1989), we held that when the California Supreme Court denies a “petition for hearing” without citation or comment, it will be assumed that “the state supreme court has been given a fair opportunity to review the merits” of the petitioner’s claim. Id. at 530. See also Prantil v. State of California, 843 F.2d 314 , 316 n. 1 (9th Cir.), cert. denied, 488 U.S. 861 , 109 S.Ct. 158 , 102 L.Ed.2d 129 (1988); Hall v. Sumner, 682 F.2d 786 (9th Cir.1982).

The procedure for a “petition for hearing” before the California Supreme Court was amended in 1985 and is now called a “petition for review.” See Rule 29(a) of the California Rules of Court and the Advisory Committee Comments to…