Sterling Cunio v. Brian Belleque

MEMORANDUM

Sterling Cunio, an Oregon state prisoner, appeals the district court’s denial of his petition for a writ of habeas corpus. Cu-nio contends that: (1) the prosecutor’s motion to dismiss two aggravated felony murder counts was a breach of his agreement to a stipulated facts trial and so rendered his jury trial waiver unknowing and involuntary in violation of Fourteenth Amendment due process; and (2) he was denied effective assistance of counsel under the Sixth Amendment when his attorney failed to object to the prosecutor’s motion to dismiss on due process grounds. Cunio’s petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

1. A state prisoner’s federal habeas petition should be dismissed if the petitioner has not exhausted available state remedies by “fairly presenting” his federal claims in briefing before each appropriate state court. Coleman v. Thompson, 501 U.S. 722, 731 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991); Baldwin v. Reese, 541 U.S. 27, 29-31 , 124 S.Ct. 1347 , 158 L.Ed.2d 64 (2004). In order fairly to present a claim, a petitioner must provide the state courts with a fair opportunity to apply controlling legal…