370
Stevens, J., dissenting
federal court on habeas review. Id., at 1041-1042. Thus, after full discussion of the issue, the Ninth Circuit concluded that respondent had exhausted his claims.1
1 The contrast between the Ninth Circuit's thoughtful opinion and this Court's cursory disposition of an important issue is best illustrated by quoting the lower court's reasoning in full:
"To satisfy the exhaustion requirement, the petitioner must have fairly presented the substance of his federal claim to the state courts. Picard v. Connor, 404 U. S. 270, 277-78 . . . (1971). The purpose of this 'fair presentation' requirement is to 'provide the state courts with a "fair opportunity" to apply controlling legal principles to the facts bearing upon his constitutional claim.' Anderson v. Harless, 459 U. S. 4, 6 . . . (1982) (quoting Picard, 404 U. S. at 276-77 . . .). We have held that a federal claim 'is fairly presented if the petitioner has described the operative facts and legal theory upon which his claim is based.' Tamapua v. Shimoda, 796 F. 2d 261, 262 (9th Cir. 1986).
"There is no doubt that Henry presented the 'operative facts' to the California court. The question is whether he presented the 'legal theory.' Henry's federal habeas claim is that the erroneous admission of evidence at his state criminal trial, followed by the jury instruction, violated his federal constitutional right to due process and was so prejudicial as to require reversal of the conviction. In his direct appeal in state court, Henry did not label his claim a federal due process violation; he argued rather that Hackett's testimony was erroneously admitted because irrelevant and inflammatory, and that its admission resulted in a 'miscarriage of justice' under the California Constitution. Cal. Const. art. VI, § 13. However, to state a federal due process claim it is not necessary to invoke 'the talismanic phrase "due process of law" ' or cite 'book and verse on the federal constitution;' petitioner need only make 'essentially the same arguments' before the state and federal courts to exhaust a claim. Tamapua, 796 F. 2d at 262-63. Thus, under Picard and Anderson, exhaustion requires only that petitioner present 'the substance of the federal claim' in state court. Id. at 262. We find that Henry has done so, regarding both his argument that the erroneous admission of the testimony and the instructional error were a violation of his federal due process right and his argument that the error was so prejudicial as to warrant reversal.
"As to the first point, it is well established that denial of due process in a state criminal trial 'is the failure to observe that fundamental fairness essential to the very concept of justice. [The court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.' Lisenba v.
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