FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL DAVIS, No. 05-16821
Petitioner-Appellant,
v. D.C. No.
CV 04-0236 GEB
J. SILVA,
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted
September 27, 2007—San Francisco, California
Filed January 2, 2008
Before: John R. Gibson,* A. Wallace Tashima, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Tashima
*The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
23
DAVIS v. SILVA 25
COUNSEL
Krista Hart, Sacramento, California, for the petitioner-
appellant.
26 DAVIS v. SILVA
Heather M. Armstrong, Deputy Attorney General of the State
of California, Sacramento, California, for the respondent-
appellee.
OPINION
TASHIMA, Circuit Judge:
Petitioner Michael Davis appeals the district court’s dis-
missal of his habeas corpus petition for failure to exhaust. In
the underlying claim, Davis complains that, during a prison
disciplinary hearing resulting in the revocation of good-time
credit, his due process right to call a witness was violated.
Respondent Warden J. Silva (the “State”) contends that
Davis’ claim is unexhausted because he failed to provide the
California Supreme Court with a sufficient factual basis for
his federal claim. We reverse the district court, holding that
Davis did exhaust the factual basis for his claim because he
presented to the state court all the facts necessary to give
application to the constitutional principle upon which he
relies.
JURISDICTION
The district court had jurisdiction pursuant to 28 U.S.C.
§ 2254, and we have jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253.
BACKGROUND
Michael Davis is a California state prisoner serving a nine-
year sentence for second degree burglary. While in prison, he
allegedly committed a battery against a prison staff employee.1
1
The prison employee recounted the alleged assault this way:
Inmate Davis . . . assigned in the Culinary as a Cart Maintenance,
reported to work at approximately 0630 hours. I noticed Inmate
DAVIS v. SILVA 27
A prison disciplinary hearing was convened. Davis was
found guilty of battery of a staff member and was assessed a
150-day forfeiture of good-time credit. Davis filed a pro se
petition for a writ of habeas corpus in the California Supreme
Court, challenging the constitutionality of the forfeiture.
For purposes of this appeal, the relevant sections of Davis’
form petition state:
Petitioner was denied his due process rights under
Wolff v. McDonnell, [1974] 418 U.S. 539 Penal
Code Section 2932 subdivision [A][3] and Title 15,
Cal. Admin, Code Section 3315[E] to have witness.
On or about 1-23-02 notice was received that the
above petitioner violation of section 4501.5 of the
Penal Code was accepted by the District Attorney
Office in Case No SF 08-3942A. In the Superior
Court of California County of San Joaquin [209]
468-2730, and then on the following date. 03-06-02
that case was dismissed interest of justice by the DA
office, the petitioner filed a great white writ of
habeas corpus, on February 13, 2002 in case No.
SF083969A see all exhibits that was given to the
court on the following date May 31, 2002 Supreme
Court of California and exhibits. Also see California
Rules of Court and Title 15, Cal. Admin. Code Sec-
tion 3315[D] and 3318[B] and the Due Process
Clauses of State and Federal Constitutions.
Davis on the Grill cooking. I went to Inmate Davis and told him
to remove his food items from the grill, because he is not
assigned as Cook. Therefore, he can not be cooking. Inmate
Davis then stated, “Fuck that I’m getting my shit cooked.” I then
responded, “No your [sic] not.” After ordering Davis to remove
his food, he grabbed it[,] crunched it up and threw it back on the
grill. He then took several steps back. On the table, that was used
to hold pans, was a 6 inch ‘Hotel Pan’ used for Oil (Cooking
Oil). Inmate Davis hit it off the table in my direction. I blocked
it with my “Left” hand. Oil splashed on my arm and shirt.
28 DAVIS v. SILVA
In another section of the petition, Davis alerted the California
Supreme Court that he was appealing from a lower court, stat-
ing that the issue raised below was:
The Due Process Clauses of the State and Federal
Wolff v. McDonnell, [1974] 418 U.S. 539 Penal
Code Section 2932 Sub A-3 Title 15
Cal.Admin.Code Sect 3315 E Title 15, Cal.Admin,
Code Section 3315(d)-3318(b).
Finally, Davis sent to the California Supreme Court a docu-
ment he titled “Order to Show Cause and Temporary
Restraining Order,” which states that the “petitioner is being
denied his due process rights under Wolff v. McDonnell,
[1974] 418 U.S. 539 . . . .” The California Supreme Court
summarily denied his petition.
Davis then filed a pro se federal petition for a writ of
habeas corpus, which the State moved to dismiss for failure
to exhaust. It argued that “Davis did not provide the Califor-
nia Supreme Court even one factual statement.” The magis-
trate judge agreed, reasoning that Davis failed to raise the
factual basis for his claim, and recommended that the district
court dismiss the petition for failure to exhaust. The district
court adopted the magistrate judge’s findings in full and dis-
missed the petition. Davis, still acting pro se, timely appealed,
and we now reverse.2
STANDARD OF REVIEW
We review a district court’s denial of habeas corpus relief
de novo. Lambright v. Schriro, 490 F.3d 1103, 1113-14 (9th
Cir. 2007).
2
After the completion of briefing, we appointed counsel and ordered
supplemental briefing.
DAVIS v. SILVA 29
DISCUSSION
[1] The exhaustion doctrine, as codified by the Antiterro-
rism and Effective Death Penalty Act of 1996, provides that
habeas relief must be denied if the petitioner has not “ex-
hausted the remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(1)(A); see also Muhammad v. Close, 540
U.S. 749, 751 (2004) (per curiam) (“Federal petitions for
habeas corpus may be granted only after avenues of relief
have been exhausted.”). Exhaustion requires that a petitioner
“fairly present[ ]” his federal claims to the highest state court
available. Weaver v. Thompson, 197 F.3d 359, 365 (9th Cir.
1999); see O’Sullivan v. Boerckel, 526 U.S. 838, 844-45
(1999) (“Section 2254(c) requires only that state prisoners
give state courts a fair opportunity to act on their claims.”
(emphasis in original)). Fair presentation requires that the
petitioner “describe in the state proceedings both the operative
facts and the federal legal theory on which his claim is based
so that the state courts have a ‘fair opportunity’ to apply con-
trolling legal principles to the facts bearing upon his constitu-
tional claim.” Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir.
2003), overruled on other grounds by Robbins v. Carey, 481
F.3d 1143, 1149 (9th Cir. 2007). Thus, “for purposes of
exhausting state remedies, a claim for relief in habeas corpus
must include reference to a specific federal constitutional
guarantee, as well as a statement of the facts that entitle the
petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-
63 (1996).
[2] The State concedes that Davis fairly presented the legal
basis of his claim, in that Davis’ petition included a reference
to a specific federal constitutional guarantee, but it contends,
and the district court agreed, that Davis failed to exhaust the
factual basis of his claim. Exhaustion, however, does not
require that a “habeas petitioner . . . present to the state courts
every piece of evidence supporting his federal claims in order
to satisfy the exhaustion requirement.” Chacon v. Wood, 36
F.3d 1459, 1469 n.9 (9th Cir. 1994), superseded on other
30 DAVIS v. SILVA
grounds by 28 U.S.C. § 2253(c) (emphasis in original).
Rather, to exhaust the factual basis of the claim, the petitioner
must only provide the state court with the operative facts, that
is, “all of the facts necessary to give application to the consti-
tutional principle upon which [the petitioner] relies.” Daug-
harty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)); see also
Randy Hertz & James S. Liebman, Federal Habeas Practice
and Procedure § 23.3c, at 1090 (2005) (same).3
[3] Here, Davis relies on the constitutional principle that
due process demands that an inmate facing a disciplinary pro-
ceeding have the right to call witnesses. See Wolff v. McDon-
nell, 418 U.S. 539, 566 (1974). The question before us then
is whether Davis’ state habeas petition provided the California
Supreme Court with all the facts necessary to give application
to this principle. Bearing in mind that “petitions must be read
in context and understood based on the particular words
used,” Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir.
2003) (en banc), and, that “pro se [habeas] petitions are held
to a more lenient standard than counseled petitions,” Sanders
v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003),4 we hold that
3
In Daugharty, for example, the petitioner argued before this Circuit
that the Oregon Supreme Court deprived him of the equal protection of the
laws when it dismissed his appeal because of his financial inability to pay
for an appellate transcript. 257 F.2d at 758. We reasoned that the peti-
tioner exhausted the factual basis of his claim by moving the state supreme
court for an order requiring that a transcript be supplied without expense
stating that such a motion “called attention to his inability to pay for a
[transcript].” Id. The petitioner in Daugharty did not provide copious or
even thorough facts; he provided just enough facts to apply the constitu-
tional principle—that dismissing his lawsuit for lack of ability to pay court
fees deprived him of the equal protection of the laws.
4
In the exhaustion context, the Supreme Court has admonished lower
courts that the complete exhaustion requirement is not intended to “trap
the unwary pro se prisoner.” See Slack v. McDaniel, 529 U.S. 473, 487
(2000). More generally, the Court has held pro se pleadings to a less strin-
gent standard than briefs by counsel and reads pro se pleadings gener-
ously, “however inartfully pleaded.” See Haines v. Kerner, 404 U.S. 519,
520 (1972) (per curiam).
DAVIS v. SILVA 31
Davis’ state habeas petition provided the state court with suf-
ficient facts to apply the constitutional principle upon which
Davis relies.
Although Davis does not present a clear narrative, his state
habeas petition explicitly states that he “was denied his due
process rights under Wolff . . . to a witness,” cites a case, a
statute, and a regulation, and notes that he was charged with
the battery of a noninmate. By simply cite checking Davis’
petition, the state court would have had all the facts necessary
to give application to the constitutional principle: he was
charged with assaulting a nonprisoner, a disciplinary hearing
took place to deny him good-time credits, and at that hearing,
he was denied a witness in violation of his due process rights
under Wolff.
Davis’ state habeas petition mentions that he had received
notice of a “violation of section 4501.5 of the Penal Code.”
Section 4501.5 of the California Penal Code provides that
“[e]very person confined in a state prison of this state who
commits a battery upon the person of any individual who is
not himself a person confined therein shall be guilty of a fel-
ony and shall be imprisoned in the state prison for two, three,
or four years, to be served consecutively.” Cal. Penal Code
§ 4501.5 (West 2000). His petition, therefore, makes it plain
that he was charged with “commit[ing] a battery upon” some-
one who was not himself an inmate.
Davis also cites California Penal Code § 2932, which gov-
erns the denial of good-time credits. It provides, among other
things, the number of days of credit an inmate loses for
engaging in certain proscribed acts. E.g., Cal. Penal Code
§ 2932(a)(2) (“Not more than 180 days of credit may be
denied or lost for a single act of misconduct, except as speci-
fied in paragraph (1), which could be prosecuted as a felony
whether or not prosecution is undertaken.”). It also sets out
the procedure by which good-time credits may be revoked
and includes enumerated rights that inmates have in such a
32 DAVIS v. SILVA
proceeding—including the right to call a witness. Id.
§ 2932(c)(3) (“The prisoner may request witnesses to attend
the hearing and they shall be called unless the person conduct-
ing the hearing has specific reasons to deny this request. The
specific reasons shall be set forth in writing and a copy of the
document shall be presented to the prisoner.”).
As previously mentioned, Davis’ petition also refers to
Wolff v. McDonnell, which holds that when a person already
in state custody faces a disciplinary proceeding resulting in
the loss of good-time credit or imposition of solitary confine-
ment, procedural due process demands that the inmate “be
allowed to call witnesses and present documentary evidence
in his defense when permitting him to do so will not be
unduly hazardous to institutional safety or correctional goals.”
418 U.S. at 566.
Finally, Davis cites the California Code of Regulations,
title 15, § 3315, which sets forth regulations for inmate mis-
conduct and describes the disciplinary proceedings to deter-
mine whether rule violations occurred. Cal. Code Regs., tit.
15, § 3315. It classifies the “use of force or violence against
another person” as a “serious rule violation.” Id.
§ 3315(a)(2)(A). Section 3315(e), one of the subsections spe-
cifically cited by Davis, is the state regulation pertaining to
the calling of witnesses at a disciplinary hearing.
[4] The conclusion that Davis failed to exhaust is plausible
only if the petition is construed without referring to the
sources cited by the petitioner. The State contends that under
the Supreme Court’s decision in Baldwin v. Reese, 541 U.S.
27 (2004), federal claims in habeas petitions are not “fairly
presented” if the state court must read the statutes, cases, and
regulations cited in the petition in order to understand the
claim. Baldwin, in fact, suggests just the opposite, as it holds
that a legal theory is fairly presented when a citation is pro-
vided to the relevant case law. See, e.g., id. at 32 (“A litigant
wishing to raise a federal issue can easily indicate the federal
DAVIS v. SILVA 33
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.’ ”); see also Insyxiengmay v. Morgan, 403 F.3d 657,
668 (9th Cir. 2005) (stating that the petitioner makes the fed-
eral basis of his claim explicit either by specifying particular
provisions of the federal Constitution or statutes, or by citing
to federal case law). Thus, by reiterating that a federal habeas
petitioner exhausts the legal basis of his claim by citing fed-
eral case law, the Court recognized that state courts are
expected to refer to sources cited by the petitioner.
[5] Thus, Davis presented the California Supreme Court
with all “the facts necessary to state a claim for relief.” Gray,
518 U.S. at 162-63. First, Davis stated that he “was denied his
due process rights under Wolff . . . to have witness [sic.].”
Second, he stated that he was charged with battery of a nonin-
mate. And, third, if the state court had simply cite checked the
case, the statute, and the regulation provided in Davis’ peti-
tion, and read those sources in conjunction with the rest of his
state habeas petition, the legal theory and operative facts
would have become clear: Davis was charged with assaulting
a nonprisoner, a disciplinary hearing took place to deny him
good-time credits, and, at that hearing, he was denied a wit-
ness in violation of his due process rights under Wolff. Com-
pare Baldwin, 541 U.S. at 33 (holding a petition unexhausted
because the “petition provides no citation of any case that
might have alerted the court to the alleged federal nature of
the claim. And the petition does not contain a factual descrip-
tion supporting the claim.” (citations omitted)).
CONCLUSION
[6] By reading Davis’ pro se state petition generously, as
Circuit precedent demands, and by checking the sources cited
in his petition, as the logic of Supreme Court precedent dic-
tates, the legal theory and factual basis of Davis’ state petition
34 DAVIS v. SILVA
is clear — he alleged that he was denied his due process at a
prison disciplinary hearing that led to revocation of good-time
credit. Because the legal theory and operative facts were
“fairly presented” to the California Supreme Court, Davis fac-
tually, as well as legally, exhausted his claim.
REVERSED and REMANDED.