FILED
NOT FOR PUBLICATION APR 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE A. LOPEZ, No. 07-56146
Petitioner - Appellant, D.C. No. CV-04-08411-GPS
v.
MEMORANDUM *
DEBRA DEXTER, Warden Substituted
for Joe McGrath,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
George P. Schiavelli, District Judge, Presiding
Submitted April 9, 2010 **
Pasadena, California
Before: SILVERMAN and GRABER, Circuit Judges, and SCULLIN,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Frederick J. Scullin, Jr., Senior United States District
Judge for the Northern District of New York, sitting by designation.
-2-
Petitioner Jose Lopez appeals the district court’s denial of the petition for
writ of habeas corpus that he filed pursuant to 28 U.S.C. § 2254. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm.
The only claim at issue on appeal is whether Petitioner’s appellate counsel
provided ineffective assistance for failing to communicate with him in Spanish
and, as a result, failing to discover a “potentially meritorious” claim under Batson
v. Kentucky, 476 U.S. 79 (1986). We do not reach the merits of this claim,
however, because Petitioner failed to exhaust it in state court.
In § 2254 proceedings, federal courts lacks jurisdiction to review any claim
that a petitioner failed to exhaust in state court. See 28 U.S.C. § 2254(b)(1)(A). In
order to exhaust a claim, a petitioner must “fairly present” to the state supreme
court both the legal and factual basis for the claim. Baldwin v. Reese, 541 U.S. 27,
29 (2004); Robinson v. Schriro, --- F.3d ---- , No. 05-99007, 2010 WL 597358, at
*10 (9th Cir. Feb. 22, 2010). “[T]he petitioner must . . . provide the state court
with the operative facts, that is, ‘all of the facts necessary to give application to the
constitutional principle upon which [the petitioner] relies.’” Davis v. Silva, 511
F.3d 1005, 1009 (9th Cir. 2008) (emphasis added) (quoting Daugharty v. Gladden,
257 F.2d 750, 758 (9th Cir. 1958)).
-3-
Here, Petitioner’s state habeas filing alleged only that appellate counsel’s
failures prevented him from “expressing himself to appellant [sic] counsel on all
the issues he thinks that prejudiced him.” Petitioner neither specified which issues
he thought prejudiced him, nor described how appellate counsel’s failure to get
Petitioner’s appraisal of such issues affected the outcome of the appellate
proceedings. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Because
Petitioner did not fairly present all operative facts to the state court, he failed to
exhaust his claim. We therefore lack jurisdiction to consider it.
Moreover, even if we construed Petitioner’s claim as exhausted, Petitioner
did not raise it in his amended petition. Rather, the claim improperly surfaced for
the first time in his traverse to the state’s answer. See Cacoperdo v. Demosthenes,
37 F.3d 504, 507 (9th Cir. 1994). The district court appropriately rejected it on
that basis, and we decline to consider it on appeal. See Robinson v. Kramer, 588
F.3d 1212, 1217 & n.7 (9th Cir. 2009).
AFFIRMED.