Robert E. Henry v. Wayne Estelle, Warden

dissenting.

The majority relies on this court’s decision in Tamapua v. Shimoda, 796 F.2d 261 (9th Cir.1986), to find that Henry satisfied the exhaustion requirement. While it is not for this panel to call Tamapua itself into question, I believe that the majority’s interpretation of Tamapua as controlling the outcome here brings Tamapua into conflict with the Supreme Court’s decision in Anderson v. Harless, 459 U.S. 4 , 103 S.Ct. 276 , 74 L.Ed.2d 3 (1982).

My review of the state court record compels me to conclude that, contrary to the requirement of Anderson , Henry did not provide the California courts with a fair opportunity to apply the legal principles controlling his federal due process claim. As a result, Henry failed to exhaust his state court remedies and the majority errs in reaching the merits of his petition.

I

Our review of Henry’s state court proceedings must be governed by the Supreme Court decision in Anderson. Anderson refined the standard declared in Picard v. Connor, 404 U.S. 270 , 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971), that “the substance of a federal habeas corpus claim must first be presented to the state courts,” id. at 278 , 92 S.Ct. at 513 , and set…

ORDER AMENDING OPINION and DENYING PETITION FOR REHEARING and REHEARING EN BANC

The opinion filed at 993 F.2d 1423 is amended as follows:

Except for the above amendments, the petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

The petition for rehearing en banc was circulated to the full court. An active judge of this court requested a vote as to

No further petitions for rehearing or rehearing en banc will be entertained. The mandate shall issue forthwith.

Judge Brunetti dissents from this order and flies herewith a dissent to the amended opinion.

OPINION

This is an appeal from a grant of habeas corpus by the United States District Court for the Central District of California. Petitioner Robert Henry contends that he was denied due process at his trial for child molestation because evidence of an uncharged crime was erroneously admitted and then followed by a jury instruction emphasizing that same evidence. The district court found that Henry had exhausted his state remedies and that the testimony in question was so inflammatory as to infect the entire trial and preclude fundamental fairness. We affirm.

Facts and Proceedings Below

Henry…

33 F.3d 1037 40 Fed. R. Evid. Serv. 711 Robert E. HENRY, Petitioner-Appellee, v. Wayne ESTELLE, Warden, Respondent-Appellant. No. 91-55691. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 9, 1991. Decided May 18, 1993. As Amended on Denial of Rehearing and Rehearing En Banc Aug. 19, 1994. As Amended Sept. 30, 1994. Everett B. Clary, O'Melveny & Myers, Los Angeles, CA, for petitioner-appellee. David F. Glassman, Deputy Atty. Gen., Los Angeles, CA, for respondent-appellant. Appeal from the United States District Court for the Central District of California. Before: FLETCHER, D.W. NELSON, and BRUNETTI, Circuit Judges. 1 Per Curiam; Dissent by Judge BRUNETTI. 2 ORDER AMENDING OPINION and DENYING PETITION FOR REHEARING 3 and REHEARING EN BANC 4 The opinion filed at 993 F.2d 1423 is amended as follows: 5 Except for the above amendments, the petition for rehearing is denied and the suggestion for rehearing en banc is rejected. 6 The petition for rehearing en banc was circulated to the full court. An active judge of this court requested a vote as to 7 whether the case should be reheard en banc. Less than the required majority of the non-recused active judges…