HIGGINSON, Circuit Judge:
Federal habeas petitioner Jamaal R. Johnson argues on appeal that his trial attorney interfered with his federal constitutional right to testify at his state trial for armed robbery and felon in possession of a firearm. Because Johnson disclaimed that argument during state habeas proceedings, we AFFIRM the district court's dismissal of his § 2254 petition as unexhausted.
Johnson was found guilty after a jury trial in Louisiana court of three counts of armed robbery and one count of felon in possession of a firearm. He was sentenced as a habitual offender to life imprisonment on the first armed robbery count, concurrent terms of 65 years' hard labor on the remaining two armed robbery counts, and a concurrent term of 15 years' hard labor on the felon-in-possession count. State v. Johnson, 951 So.2d 294, 297 (La.Ct.App.2006). His convictions and sentences were affirmed on direct appeal. Id. at 304.
In his state habeas petition, Johnson argued that his trial counsel interfered with his right to testify at trial. Nineteenth Judicial District Court Commissioner John M. Smart, Jr. recommended that the state habeas court grant Johnson a new trial on that basis. In response, the State of Louisiana filed a traversal
In his federal habeas petition, filed pursuant to 28 U.S.C. § 2254, Johnson re-asserted his right-to-testify claim. The State of Louisiana moved to dismiss Johnson's habeas petition on the grounds that the district court lacked jurisdiction to hear the claim because it was based on an alleged violation of state law, and reasoned, in the alternative, that even if Johnson's right-to-testify claim were based on
Whether a federal habeas applicant has exhausted state remedies is a question of law we review de novo. Morris v. Dretke, 413 F.3d 484, 491 (5th Cir.2005).
A federal habeas petition filed by a state prisoner shall not be granted unless the prisoner exhausts available state remedies. 28 U.S.C. § 2254(b)(1)(A); Morris, 413 F.3d at 490. The exhaustion requirement is satisfied when the substance of the federal claim is "fairly presented" to the highest state court on direct appeal or in state post-conviction proceedings, "even if the state court fails to address the federal claim," Soffar v. Dretke, 368 F.3d 441, 467 (5th Cir.2004), or, if the federal claim is not fairly presented but the state court addresses it sua sponte, Jones v. Dretke, 375 F.3d 352, 355 (5th Cir.2004).
A claim is fairly presented when the petitioner "asserts the claim in terms so particular as to call to mind a specific right protected by the Constitution or alleges a pattern of facts that is well within the mainstream of constitutional litigation." Kittelson v. Dretke, 426 F.3d 306, 315 (5th Cir.2005) (per curiam) (internal quotation marks omitted). "It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made." Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001) (quoting Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982)); see also Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (holding that petitioner did not fairly present federal due process claim by bringing a "somewhat similar" but doctrinally distinct "miscarriage of justice" claim under the California Constitution); Gartrell v. Lynaugh, 833 F.2d 527, 529 (5th Cir. 1987) (holding that petition presenting state-law sufficiency challenge fairly presented a federal sufficiency challenge because "the federal and state standards applicable to [petitioner]'s claims are identical, not merely `somewhat similar'"). "Rather, the petitioner must afford the state court a `fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim.'" Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir.2004) (quoting Anderson, 459 U.S. at 6, 103 S.Ct. 276).
In his pro se state habeas petition, Johnson characterizes his first claim as a "denial of the right to testify" protected by the Louisiana and United States Constitutions. In an opening section entitled "The Constitutional Right to Testify In One's Own Behalf," he derives the federal right to testify from the Fifth Amendment's privilege against self-incrimination; the Sixth Amendment's right to compulsory process; and the Fourteenth Amendment's right to due process, citing as authority
Although precedent suggests that Johnson fairly presented his federal right-to-testify claim in his state habeas petition,
We were presented with a similar set of facts in Daniel v. Cockrell, 283 F.3d 697 (5th Cir.2002), abrogated on other grounds by Glover v. United States, 531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001). There, a Texas prisoner brought an ineffective assistance claim in his state habeas petition. Id. at 701. At the time, Texas did not require a showing of prejudice to establish ineffective assistance of counsel, so the state and federal rights, though parallel, were not co-extensive. Id. Although it appears that nothing prevented the petitioner from bringing state and federal ineffective assistance claims, he asserted only the state claim and "specifically disclaimed reliance on the federal ineffective assistance of counsel standard." Id. After his state habeas petition was denied on the merits, petitioner sought to bring a federal ineffective assistance claim on federal habeas review. Id. The district court dismissed his habeas petition as unexhausted, and we affirmed, on the ground that petitioner never fairly presented a federal ineffective assistance claim to the Texas courts. Id.
We held in Daniel, and now reiterate, that a state habeas petitioner's disclaimer of an argument has the same effect as his failure to raise it in the first place. Id. The exhaustion requirement "reflects a policy of federal-state comity... designed to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir.2003) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). By disclaiming reliance on a potential ground for habeas relief, a state habeas petitioner signals to the state courts that they need not pass judgment upon it. Allowing the petitioner to revive that claim in a federal habeas petition,
Johnson argues that it would be unfair to require a state habeas petitioner to bring a Strickland claim during state habeas proceedings to preserve that claim for federal habeas review:
But, as the State of Louisiana points out, it is not an either-or proposition. Nothing prevented Johnson from asserting that his trial counsel's conduct violated the Louisiana Constitution, under Hampton, and the Sixth Amendment to the United States Constitution, under Strickland. Post-conviction relief is available under Louisiana law when "[t]he conviction was obtained in violation of the constitution of the United States or the state of Louisiana." LA.CODE CRIM. PROC. art. 930.3(1) (emphasis added).
Where, as here, "a prisoner fails to exhaust state remedies and the court to which the prisoner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred due to the prisoner's own procedural default,"
Johnson lacks good cause for the default because the record reflects that he and his state habeas counsel were on notice that the federal and state rights to testify had different scopes and were governed by different standards, but elected to bring a state ineffective assistance claim and to forgo a federal ineffective assistance claim in order to focus the court's attention on the more expansive state right and the easier-to-satisfy Hampton standard.
For the foregoing reasons, we conclude that Johnson's federal habeas petition is unexhausted and procedurally barred, and that Johnson has failed to demonstrate good cause for the default or that failure to consider his federal ineffective assistance claim would result in a fundamental miscarriage of justice. AFFIRMED.
Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). Following Baldwin, we have demanded less of state habeas petitioners seeking to raise a federal claim, exemplified by Taylor v. Cain, 545 F.3d 327 (5th Cir.2008), where we deemed a claim fair writ and presented although the petitioner "did not label his claim as a federal constitutional one," because "his brief made the type of arguments that support a Confrontation Clause claim" and he cited two Louisiana cases mentioning the federal confrontation right. Id. at 333-34; see also Kittelson v. Dretke, 426 F.3d 306, 316-17 (5th Cir.2005) (holding that petitioner fairly presented federal confrontation and due process claims by invoking those concepts and citing the Sixth and Fourteenth Amendments).