                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                               DEC 14 2011

                                                                            MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS

STERLING CUNIO,                                   No. 10-36017

              Petitioner - Appellant,             D.C. No. 6:08-cv-0841-TC

  v.
                                                  MEMORANDUM*
BRIAN BELLEQUE,

              Respondent - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                  Thomas M. Coffin, Magistrate Judge, Presiding

                      Argued and Submitted December 6, 2011
                               Seattle, Washington

Before: TASHIMA, McKEOWN, and TALLMAN, Circuit Judges.

       Sterling Cunio, an Oregon state prisoner, appeals the district court’s denial

of his petition for a writ of habeas corpus. Cunio 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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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 (1991); Baldwin v. Reese, 541 U.S. 27, 29-31

(2004). In order fairly to present a claim, a petitioner must provide the state courts

with a fair opportunity to apply controlling legal principles to the facts relevant to

the constitutional claim by describing both the operative facts and the federal legal

theory on which the claim is based. Anderson v. Harless, 459 U.S. 4, 6 (1982). A

petitioner may not fundamentally alter the legal claim already considered by the

state courts. Beaty v. Stewart, 303 F.3d 975, 989-90 (9th Cir. 2002). Accordingly,

mere citation to the same constitutional protection in state and federal court is not

sufficient if the legal theory or factual allegations urged in its support are not

constant. See Picard v. Connor, 404 U.S. 270, 277 (1971).




                                           2
      In state court, Cunio argued that his jury trial waiver was not knowing and

voluntary because his attorney misinformed him that he could not be sentenced to

consecutive sentences and because he did not understand the lengthy sentence that

could result from his waiver. It was not until his federal petition that Cunio

asserted that prosecutorial breach of a binding plea agreement, which Cunio says

required the prosecutor to seek conviction on all eight charges alleged in the

indictment, rendered his waiver involuntary because it deprived him of the benefit

of his bargain. Cunio has thus significantly changed the legal theory that links the

underlying facts to his federal due process claim. Cunio’s due process claim was

therefore not exhausted before the Oregon courts and is consequently procedurally

defaulted. See Or. Rev. Stat. §§ 138.510(3) (two year time limit for petitions),

138.550(3) (barring successive petitions).

      2.     Even assuming, arguendo, that Cunio fairly presented his ineffective

assistance claim to the Oregon state courts, Cunio’s claim that his attorney failed to

provide effective assistance when he did not object to the prosecutor’s alleged

breach of the stipulated facts agreement fails on the merits. See 28 U.S.C. §

2254(b)(2) (permitting a petition to be denied on the merits, notwithstanding

failure to exhaust state court remedies). In order to prevail on an ineffective

assistance of counsel claim, a petitioner must show that counsel’s representation


                                          3
fell below an objective standard of reasonableness and must demonstrate a

reasonable probability that, but for counsel’s errors, the result in the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687-94

(1984). Review of a Strickland claim in a federal habeas petition is “doubly

deferential,” because the court must apply deferential AEDPA review to the state

court’s decision, as well as the strong presumption in favor of the reasonableness

of counsel’s conduct. Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011);

Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

      The Oregon post-conviction relief court concluded that Cunio did not

establish prejudice due to his trial counsel’s alleged deficiencies and that he was

not denied the right to effective assistance of counsel under the United States

Constitution. That court also found that the trial prosecutor’s motion to dismiss

did not change or violate the terms of Cunio’s stipulated facts agreement, a

determination that we must presume correct unless rebutted by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1). In light of that finding, the Oregon

court’s conclusions were not contrary to, or an unreasonable application of, clearly

established federal law. 28 U.S.C. § 2254(d)(1). Accordingly, Cunio’s ineffective

assistance of counsel claim fails on the merits.

      AFFIRMED.


                                          4
