dissenting:
I respectfully dissent from the majority’s conclusion that Chambers exhausted his state court remedies. Therefore, I would deny Chambers’ petition for writ of habeas corpus and would remand to the district court to direct the petitioner to file his claims in the Nevada state courts.
The majority correctly sets forth that, pursuant to 28 U.S.C. § 2254(b)(1), a state prisoner must exhaust remedies available in state courts before a federal court may consider a claim. Exhaustion typically requires that “state prisoners ... give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). The exhaustion doctrine is satisfied “[i]f a petitioner presents his claim to the highest state court and that court disposes of the claim on the merits.” Hayes v. Kincheloe, 784 F.2d 1434, 1437 (9th Cir.1986). In this case, neither exhaustion requirement was satisfied.
*1202First, Chambers did not fairly present his habeas claim challenging the jury instruction on premeditation and deliberation to the Nevada Supreme Court. As we summarized in Roettgen v. Copeland, “submitting a new claim to the state’s highest court in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation.” 33 F.3d 36, 38 (9th Cir.1994). Here, Chambers raised his jury instructions claim for the first time in state court in a petition for extraordinary writ to the Nevada Supreme Court. Extraordinary writs are a form of discretionary relief, and only granted in special circumstances. See Gumm v. Nev. Dep’t of Educ., 121 Nev. 371, 113 P.3d 853, 856 (2005) (“[An] extraordinary writ will issue only when the right to the relief requested is clear and the petitioners have no plain, speedy and adequate remedy in the ordinary course of law”). Thus, Chambers did not fairly present his habeas claim to the state’s highest court.
Second, the Nevada Supreme Court’s order denying Chambers’ petition for extraordinary writ did not dispose of his jury instructions claim on the merits. As described above, the Nevada Supreme Court may exercise its discretion to issue extraordinary writs only where the petitioner has “no plain, speedy and adequate remedy in the ordinary course of law.” Id. In this case, Chambers had a plain, speedy and adequate remedy: to follow the statutory procedures of filing an amended writ of habeas corpus, stating federal constitutional claims, in the state trial court, and then appealing any denial to the Nevada Supreme Court. The Nevada Supreme Court was thus not required to consider the merits of Chambers’ claim. Indeed, it would be surprising if the court had considered the merits, given that the traditional method of filing a writ of habeas corpus provided adequate relief. Thus, not surprisingly, the language of the order denying the petition for extraordinary writ does not state that the Nevada Supreme Court considered the merits of Chambers’ jury instruction claim.
This, of course, is where I part with the majority. No words in the order suggest that the Nevada Supreme Court decided the case on the merits; in fact, some language in the order suggests the opposite. Certainly the statement that the court “considered the petition” does not indicate that the court declined to issue the extraordinary writ on the merits of the constitutional claims. It is fair to assume that the Nevada Supreme Court carries out its judicial duty and considers each petition that comes before it. That is, the court reads the petition and evaluates whether it should exercise its discretion to issue the writ in cases where petitioners have no “plain, speedy and adequate remedy in the ordinary course of law.” Clearly, the words “considered the petition” alone do not indicate that the court evaluated the merits of petitioner’s claim.
Similarly, the majority construes the court’s use of the word “conclude” in its statement that extraordinary relief was not warranted as strongly suggesting that the court made its conclusion on the merits. That is too great of a jump for me. A more plausible reading is that the Nevada Supreme Court concluded that extraordinary relief was not warranted because petitioner could file an amended petition for writ of habeas corpus and follow traditional appellate procedures to bring the merits of the claim before the court. The language of the order supports this view. The order reads “we are not satisfied that this court’s intervention by way of extraordinary relief is warranted at this time.” (emphasis added). Is not this the key? The court’s statement that intervention was not “warranted at [that] time” leaves *1203open the possibility that the court could grant relief at a later time, for example, after an appeal of a denial of a writ of habeas corpus from the state trial court. If the court had decided to deny the writ on the merits, there would be no reason to leave open the option of relief on those merits at a future date.
The majority acknowledges that had the Nevada Supreme Court denied the petition without opinion, Castille v. Peoples would control and the claims presented for the first time to the Nevada Supreme Court would not be exhausted. 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). The only distinction between the instant case and Castille is the Nevada Supreme Court’s statement that “[w]e have considered the petition ..., and we are not satisfied that this court’s intervention by way of extraordinary relief is warranted at this time,” along with a footnote indicating that the court had considered all the documents filed.
Relying on Greene v. Lambert, the majority construes the Nevada Supreme Court’s cursory statement as a decision on the merits of Chambers’ claim, even though the circumstances of Greene differ significantly from those of the instant case. 288 F.3d 1081, 1086-88 (9th Cir.2002). In Greene, the Washington Supreme Court amended its opinion denying a petitioner’s state habeas petition to address a federal constitutional claim raised for the first time in a motion to reconsider. Id. at 1085. In the amended opinion, the Washington Supreme Court stated that it did not have to reach the issue raised because it could decide the case on narrower grounds. Id. We recognized that “the Washington Supreme Court would have been within its discretion simply to deny the motion or to dismiss it without comment,” instead of amending the opinion to address the motion. Id. at 1087. Consequently, we were free to engage in analyzing the “cryptic” amendment to the opinion and conclude that the state court’s decision was made on the merits. Id. We were ultimately persuaded that the exhaustion requirement had been met because the state court’s decision could not “be fairly characterized as merely procedural. The court understood the nature of the claim and took pains to respond to it, albeit curtly and ambiguously.” Id.
Unlike Greene, the Nevada Supreme Court in this case did no more than to deny the petition and to issue a summary statement regarding the denial. There is no fair way to construe the state court’s decision as having been made on the merits. The most natural characterization of the Nevada Supreme Court’s dismissal of the claim is that it did so on procedural grounds, given that the court explicitly held that the situation did not warrant intervention by way of extraordinary relief. Additionally, nothing in the court’s decision gives any indication of the “nature of the claim,” and the court’s decision does not suggest that the court “took pains to respond to [the claim].” Id. The court merely issued a short statement denying the petition.
The majority relies on the rule in Harris v. Superior Court that unless a court expressly states that it is relying upon a procedural bar, ambiguous responses should be construed to mean that the court acted on the merits of a claim, if such a construction is possible. 500 F.2d 1124, 1128-29 (1974). But a critical distinction between Harris and the instant case is apparent: Harris was an appeal from a denial of a writ of habeas corpus; this case is an appeal from a denial of an extraordinary writ. As explained above, the Nevada Supreme Court is not even permitted to exercise its discretion to issue an extraordinary writ except in special eircum-*1204stances, as where there is no other speedy and adequate relief. The rule announced in Harris thus does not apply to this case.
Similar reasoning distinguishes Alexander v. Fogliani, 375 F.2d 733, 735 (9th Cir.1967). As in Harris, the habeas claim in Alexander came to this court as an appeal from a denial of a writ of habeas corpus, and not a denial of extraordinary relief. Id. Moreover, the language of the Nevada Supreme Court’s denial of relief in Alexander clearly evinced a disposition on the merits. As the majority recounts, the Nevada Supreme Court’s order in that case stated that “the petitioner’s present confinement is in all respects legal.” Id. No such discussion of the merits is present in the order denying the extraordinary writ in this case.
Finally, the majority cites Hosier v. State for the proposition that the Nevada Supreme Court is “capable of clearly and unambiguously denying a petition for an extraordinary writ on procedural grounds,” and that the ambiguous language in this case must therefore be construed as a disposition on the merits. 121 Nev. 409, 117 P.3d 212, 213 (2005) (per curiam). But the Nevada Supreme Court is equally capable of clearly and unambiguously indicating that its denial of an extraordinary writ petition is on the merits. In Hickey v. Eighth Judicial District Court, the court explicitly stated that it would “exercise [its] discretion to entertain the merits of the petition,” and then proceeded to deny the petition. 105 Nev. 729, 782 P.2d 1336, 1338 (1989). Why then should we construe the ambiguity in this case as a merits denial, as the majority advocates? We should not. Given that extraordinary writs are issued only in special circumstances, I believe the most logical interpretation of the Nevada Supreme Court’s curt order is a denial on procedural, rather than substantive grounds.
While the history of Chambers’ appeals process has been long and complex, the federal court should not shortchange the state’s opportunity to evaluate all claims on their merits. We do not respect the state court system when we construe an order denying an extraordinary writ (where the court is only expected to review cases on the merits where extraordinary relief is necessary) as being a decision on the merits. The Nevada court system must have the full opportunity to address the merits of Chambers’ federal constitutional claims, and the order denying the extraordinary writ does not indicate that the Nevada Supreme Court has done so. There is, of course, a virtue in bringing litigation to a conclusion as soon as reasonably possible. But our system of federalism requires that state courts rule on the merits first — especially when a state crime involving a state-convicted criminal defendant is challenged in a habeas corpus proceeding. Therefore, I respectfully dissent.