Dwayne Randall JOHNSON, Petitioner-Appellant, v. Carl ZENON, Respondent-Appellee

Petitioner, Dwayne Randall Johnson, appeals the district court’s denial on the merits of his petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253 , review the district court’s denial of habeas corpus relief de novo, Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir.1994), and hold that Johnson has failed to demonstrate exhaustion of state court remedies.

I.

Johnson was charged in Oregon state court with criminal trespass in the first degree and three counts of burglary: burglary with intent to commit menacing; burglary with intent to commit criminal mischief; and burglary with intent to commit rape. During Johnson’s jury trial the state, over Johnson’s objection, introduced evidence regarding Johnson’s prior rape conviction in order to prove his alleged intent to commit rape at the time he entered the victim’s home. The jury convicted Johnson of all the crimes charged except for burglary with intent to commit rape, for which it was unable to reach a verdict.

On appeal to Oregon’s intermediate appellate court, Johnson argued, inter alia, that the admission of his prior rape conviction violated Oregon Evidence Code 404(3), which, like Federal Rule…