FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINCENT L. FIELDS, No. 04-35169
Petitioner-Appellant,
v. D.C. No.
CV-03-01211-TSZ
DOUG WADDINGTON,
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted
January 10, 2005—Seattle, Washington
Filed March 21, 2005
Before: Mary M. Schroeder, Chief Judge, Susan P. Graber,
and Raymond C. Fisher, Circuit Judges.
Opinion by Judge Graber
3365
3368 FIELDS v. WADDINGTON
COUNSEL
Suzanne Lee Elliott, Seattle, Washington, for the petitioner-
appellant.
Ronda D. Larson, Assistant Attorney General, Criminal Jus-
tice Division, for the respondent-appellee.
OPINION
GRABER, Circuit Judge:
The district court dismissed a petition for a writ of habeas
corpus for failure to exhaust state court remedies in Washing-
ton. The main question before us is whether, in Washington,
briefing a state constitutional claim alerts the state court that
it is called on to decide an independent and parallel federal
constitutional claim, even in the absence of a Washington
FIELDS v. WADDINGTON 3369
case holding expressly that the two claims are substantively
identical. We answer that question “no” and, therefore, affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 8, 1994, Scott Holm was murdered. Two
days later, Petitioner Vincent Fields charged more than
$2,000 on Holm’s credit cards. Petitioner was charged with
second-degree murder, second-degree theft, and drug-related
crimes. A jury found him guilty on all counts. The Washing-
ton Court of Appeals affirmed the theft and drug convictions
but reversed his second-degree murder conviction due to an
erroneous jury instruction. At a second trial, a jury again
found Petitioner guilty of second-degree murder.
Petitioner, acting pro se, filed a Personal Restraint Petition
(“PRP”) in state court challenging the constitutionality of his
second trial on several grounds.1 Only three of those grounds
are at issue in this appeal. As now relevant, Petitioner claimed
that the trial court erred in (1) failing to furnish him with a
personal copy of the second amended information,2 (2) allow-
ing the prosecution to impeach him with a prior conviction
not charged in the second amended information, and (3) fail-
ing to credit against his sentence the time Petitioner had spent
in jail between his first conviction, which was later over-
turned, and his second conviction. The Washington Supreme
Court corrected the amount of a fine but otherwise dismissed
Petitioner’s PRP.
Petitioner filed a timely petition for a writ of habeas corpus
in federal district court, challenging only his second-degree
murder conviction. He raised nine claims for relief. The dis-
1
Petitioner filed a total of six PRPs in Washington state courts. The
fourth PRP that Petitioner filed is the one at issue in this case, so we refer
only to Petitioner’s fourth PRP.
2
Petitioner’s counsel, however, was provided two copies of the
amended information.
3370 FIELDS v. WADDINGTON
trict court reviewed, and denied on the merits, three of Peti-
tioner’s claims. The remaining six claims, including the three
at issue here, the court dismissed as unexhausted or procedur-
ally barred. Accordingly, the court denied the petition.
Petitioner timely appealed and has a certificate of appeala-
bility on one question: whether he properly exhausted the
claims that the district court held were unexhausted. Petitioner
concedes that all but three of his claims were not exhausted;
as to those three, which we have described, he contends that
he fairly presented his federal claims to the Washington
courts and, therefore, that the district court should have
reviewed those claims on the merits.
STANDARD OF REVIEW
We review de novo a district court’s denial of a writ of
habeas corpus for failure to exhaust. Vang v. Nevada, 329
F.3d 1069, 1072 (9th Cir. 2003). This petition is governed by
the Antiterrorism and Effective Death Penalty Act of 1996.
Consequently, we may grant relief only if the state court’s
decision was “contrary to, or involved an unreasonable appli-
cation of, clearly established Federal law, as determined by
the Supreme Court of the United States; or . . . was based on
an unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d).
DISCUSSION
[1] We may review the merits of Petitioner’s habeas peti-
tion only if he exhausted state court remedies. Galvan v.
Alaska Dep’t of Corr., 397 F.3d 1198, 1201-02 (9th Cir.
2005); see also 28 U.S.C. § 2254(b)(1)(A) (“An application
for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted
unless it appears that . . . the applicant has exhausted the rem-
edies available in the courts of the State[.]”). To satisfy the
FIELDS v. WADDINGTON 3371
exhaustion requirement, he had to “fairly present” the federal
claims in state court “to give the State the opportunity to pass
upon and correct alleged violations of its prisoners’ federal
rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (per
curiam) (internal quotation marks omitted); see also Baldwin
v. Reese, 124 S. Ct. 1347, 1351 (2004) (holding that, ordinar-
ily, for a petitioner to “fairly present” federal claims to a state
court, the federal issues must be clearly identified in the state
court brief). Petitioner fairly presented federal claims only if
he alerted the state court that his claims rested on the federal
Constitution. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th
Cir. 1999) (per curiam) (holding that, when the petitioner
failed to cite federal case law or mention the federal Constitu-
tion in his state court briefing, he did not alert the state court
to the federal nature of his claims). In order to alert the state
court, a petitioner must make reference to provisions of the
federal Constitution or must cite either federal or state case
law that engages in a federal constitutional analysis. See
Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (hold-
ing that state-exhaustion requirements for a habeas claim are
satisfied when a petitioner cites federal case law or provisions
from the federal constitution or statutes), amended, 247 F.3d
904 (9th Cir. 2001); Peterson v. Lampert, 319 F.3d 1153,
1157-58 (9th Cir. 2003) (en banc) (holding that a citation to
a state court case that provides a federal analysis can “serve[ ]
the same purpose as a federal case analyzing such an issue”).
[2] A habeas petition from a state prisoner, like Petitioner,
who is proceeding pro se may be viewed more leniently for
exhaustion purposes than a petition drafted by counsel. Sand-
ers v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003), cert. denied,
124 S. Ct. 1661 (2004); Peterson, 319 F.3d at 1159. With
those standards in mind, we readily conclude that, even view-
ing Petitioner’s pro se PRP under the more lenient standard,
it did not alert the state court to his federal claims.
3372 FIELDS v. WADDINGTON
1. Failure to Provide Petitioner with a Personal Copy of the
Second Amended Information
In his federal habeas petition, Petitioner contends that the
trial court violated both his federal Sixth Amendment right to
be informed of the charges against him and his federal Four-
teenth Amendment right to due process, by failing to either
provide him personally with a copy of the second amended
information—even though his counsel had the information—
or read the information aloud to him in court.
[3] Petitioner’s briefing to the state court mentioned the
“federal Constitution” twice, and “due process” once, but dis-
cussed an applicable provision of the state constitution
throughout the remainder of the argument. Petitioner’s mere
mention of the federal Constitution as a whole, without speci-
fying an applicable provision, or an underlying federal legal
theory, does not suffice to exhaust the federal claim. See Cas-
tillo v. McFadden, No. 03-15715, 2005 WL 427893, at *8
(9th Cir. Feb. 24, 2005) (holding that exhaustion demands
more than a citation to a general constitutional provision,
detached from any articulation of the underlying federal legal
theory). Nor is a federal claim exhausted by a petitioner’s
mention, in passing, of a broad constitutional concept, such as
due process. See Hiivala, 195 F.3d at 1106 (holding that “gen-
eral appeals to broad constitutional principles, such as due
process, equal protection, and the right to a fair trial, are
insufficient to establish exhaustion” (emphasis added)).
[4] Petitioner’s state court brief cited only state law cases,
with one exception: Jones v. Barnes, 463 U.S. 745 (1983).
There the Supreme Court held that appointed counsel need
not raise every colorable claim suggested by a client. Id. at
754. Jones bears no relation to Petitioner’s argument that his
constitutional rights (either state or federal) were violated
when the trial court failed to provide him with a personal
copy of the amended information. The citation to Jones did
not exhaust this federal claim because “[c]itation of irrelevant
FIELDS v. WADDINGTON 3373
federal cases does not provide a state court with a fair oppor-
tunity to apply controlling legal principles to the facts bearing
upon his constitutional claim.” Castillo, 2005 WL 427893, at
*7 (internal quotation marks omitted).
2. Impeachment of Petitioner with Prior Conviction Not
Charged in Second Amended Information
Petitioner’s federal habeas petition next asserts that the trial
court erred by allowing the prosecution to impeach him with
a prior conviction that was not charged in the second amended
information.
[5] Petitioner’s PRP briefing for this claim provided even
fewer references to federal constitutional law than his previ-
ous claim. He used the term “fair trial” twice and the term
“due process” once. But, as we have said, merely mentioning
broad constitutional principles in passing does not suffice to
exhaust federal claims. Hiivala, 195 F.3d at 1106.
3. Failure to Credit Jail-Time and Good-Time
Finally, in his federal habeas petition, Petitioner argues that
the state trial court failed to give him proper sentencing credit
for the time he spent in jail between his first and second con-
victions for second-degree murder.
Petitioner’s PRP briefing for this claim cited no federal
case and made no mention, even obliquely, of the federal
Constitution. Petitioner contends that he fairly presented a
federal due process claim by citing State v. Phelan, 671 P.2d
1212 (Wash. 1983), a state court decision that reviewed the
petitioner’s claims under both state and federal law. When a
petitioner does not label his claim as federal, the mere citation
to a state court case that engages in both a state and federal
constitutional analysis does not suffice to exhaust the federal
claim. See Casey v. Moore, 386 F.3d 896, 912 n.13 (9th Cir.
2004) (“For a federal issue to be presented by the citation of
3374 FIELDS v. WADDINGTON
a state decision dealing with both state and federal issues rele-
vant to the claim, the citation must be accompanied by some
clear indication that the case involves federal issues.”).
[6] Perhaps recognizing the difficulty of meeting the usual
standard for fairly presenting a claim, Petitioner argues in the
alternative that, under Washington law, due process protec-
tions are “largely coextensive” with federal due process pro-
tections. Accordingly, by raising state due process claims, he
contends, he simultaneously raised federal ones. The Supreme
Court has left open the question whether raising a state claim
that is “identical” to a federal claim suffices to fairly present
the federal claim. Baldwin, 124 S. Ct. at 1352. But raising a
state claim that is merely similar to a federal claim does not
exhaust state remedies. See Johnson v. Zenon, 88 F.3d 828,
830 (9th Cir. 1996) (holding that a petitioner does not raise
federal claims by implication when raising state claims even
if the two are “essentially the same”); Duncan, 513 U.S. at
366 (holding that “mere similarity of claims is insufficient to
exhaust”).
[7] Even if we were to assume that raising identical state
and federal claims satisfied exhaustion requirements, Peti-
tioner would not have exhausted his state court remedies
because he failed to show that his claims would be treated
identically. In some circumstances, the Washington Supreme
Court treats due process rights under the federal and state con-
stitutions as coextensive. See, e.g., In re Matheson, 12 P.3d
585, 591 (Wash. 2000) (concluding that state and federal due
process claims are the same in the context of an inmate’s right
to receive a pre-transfer hearing). But Petitioner must show
that the Washington state courts treat his particular claimed
due process violations identically under both the state and
federal constitutions. See Howell v. Mississippi, 125 S. Ct.
856, 859 (2005) (per curiam) (looking to state case law to see
whether the state courts have treated a claimed constitutional
violation regarding a jury instruction under state law identi-
cally to its treatment under the federal Constitution). Peti-
FIELDS v. WADDINGTON 3375
tioner has failed to cite Washington cases that apply state and
federal due process protections identically in the contexts of
the claims he raised, and we are aware of none. See Casey,
386 F.3d at 914 n.15 (refusing to reach the question whether
the petitioner had raised a federal due process claim because
he failed to cite cases holding that his Washington and federal
claims were identical).
Despite the absence of Washington cases directly on point,
Petitioner has a novel theory to explain why, in his view, the
Washington courts were alerted to the presence of his federal
claims and why his state and federal constitutional claims are
identical. To understand his theory, we must turn to Washing-
ton law.
[8] In State v. Gunwall, 720 P.2d 808, 811 (Wash. 1986),
the Washington Supreme Court listed several nonexclusive
criteria that a litigant should address when asking the court to
extend broader rights under the state constitution than those
afforded under the federal constitution.3 The purpose of this
requirement is to provide a “principled basis” for the develop-
ment of Washington’s state constitutional jurisprudence. Id. at
812. When a litigant fails to brief the so-called Gunwall fac-
tors, Washington state courts assume that the litigant is not
asserting a claim for broader constitutional protection under
the state constitution and, consequently, apply federal consti-
tutional principles to analyze the claim.4 There is no indica-
3
The Gunwall court articulated these six criteria: (1) the text of the state
constitution; (2) significant differences in the text of parallel provisions of
the federal and state constitutions; (3) state constitutional and common law
history; (4) preexisting state law; (5) differences in structure between the
federal and state constitutions; and (6) matters of particular state interest
or local concern. 720 P.2d at 811.
4
See, e.g., In re Marriage of Suggs, 93 P.3d 161, 164 (Wash. 2004)
(“Where, as here, the parties failed to brief the Gunwall factors, this court
will not consider a claim that our state constitution affords greater protec-
tion.”); State v. Fire, 34 P.3d 1218, 1224 (Wash. 2001) (“If the party has
not engaged in Gunwall analysis, this court will consider his claim only
3376 FIELDS v. WADDINGTON
tion, however, that Washington applies the Gunwall rule to
assess whether a state court prisoner has exhausted federal
claims in state court. See O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999) (noting that the purpose of the exhaustion
requirement is to ensure that a state prisoner gives the state
courts an opportunity to act on claims before they are pre-
sented to a federal court in a habeas petition).
[9] Petitioner’s PRP briefing did not discuss the Gunwall
factors. Therefore, he reasons, the state court must have
applied the Gunwall “default” rule and decided his claims
under federal law. But a petitioner’s failure to brief the Gunw-
all factors does not affirmatively raise federal claims for the
purpose of exhaustion; to the contrary, it merely guides the
state court in reviewing state-law claims. See id. at 813 (not-
ing that the Gunwall criteria will provide courts with a “rea-
sonable and reasoned” means for assessing a claim that state
constitutional protections extend beyond analogous federal
ones). In other words, the absence of Gunwall briefing means
only that the Washington courts will—until some litigant per-
suades the Washington Supreme Court to the contrary—
analyze a provision of the state constitution under analogous
federal principles. We have found no Washington case sug-
gesting that a Washington court in that circumstance consid-
ers the petitioner to have raised an independent federal claim
for the purpose of exhaustion. See Duncan, 513 U.S. at 366
(“If a habeas petitioner wishes to claim that [an action by] a
under federal constitutional law.”); State v. Sullivan, 19 P.3d 1012, 1022
n.73 (Wash. 2001) (“Respondent has not engaged in an analysis of [Gun-
wall] . . . . Accordingly, we will only consider his due process claim under
federal constitutional law.”); Tellevik v. 31641 W. Rutherford St., 838 P.2d
111, 115-16 (Wash. 1992) (“This court has declined to address indepen-
dent state constitutional grounds when they have not been thoroughly
briefed and discussed. Because the defendants have not addressed the
Gunwall factors, we only address whether the procedure used meets fed-
eral constitutional standards.”) (internal citations and quotation marks
omitted).
FIELDS v. WADDINGTON 3377
state trial court [violated one of his federal constitutional
rights] he must say so, not only in federal court, but in state
court.” (emphasis added)); cf. Baldwin, 124 S. Ct. at 1351
(noting that “[a] litigant wishing to raise a federal issue can
easily indicate the federal law basis for his claim in a state-
court petition or brief, for example, by citing in conjunction
with the claim the federal source of law on which he relies or
a case deciding such a claim on federal grounds, or by simply
labeling the claim ‘federal’ ”).
[10] In the absence of an affirmative statement by the
Washington Supreme Court that it considers a particular state
and federal constitutional claim to be identical, rather than
analogous, or an affirmative statement by the Washington
Supreme Court that failure to raise the Gunwall factors serves
to raise federal claims for the purposes of exhaustion, Peti-
tioner was required to raise his federal claims affirmatively;
we will not infer that federal claims have been exhausted.
Accordingly, Petitioner’s failure to address Gunwall in his
PRP briefing does not avail him.
[11] We conclude that Petitioner did not raise any of his
three federal claims in his PRP briefing and, consequently,
did not exhaust his state court remedies.
AFFIRMED.