David Abara v. Renee Baker , 618 F. App'x 347 ( 2015 )

FILED
NOT FOR PUBLICATION OCT 14 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ABARA, No. 13-16712
Petitioner - Appellant, D.C. No. 3:10-cv-00688-HDM-
VPC
v.
RENEE BAKER, et al., MEMORANDUM*
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, Senior District Judge, Presiding
Argued and Submitted September 16, 2015
San Francisco, California
Before: W. FLETCHER, BERZON, and BEA, Circuit Judges.
David Abara appeals from the dismissal of his first amended federal petition
for a writ of habeas corpus. This court granted a Certificate of Appealability as to
grounds 1, 2, 7, 8, and 9 of Abara’s amended petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Grounds 1, 2, and 7 of the amended petition relate back to Abara’s original
timely-filed federal habeas petition because these grounds share “a common core
of operative facts” with grounds in Abara’s original petition, and were therefore
timely filed. See Mayle v. Felix, 545 U.S. 644, 664 (2005); Ha Van Nguyen v.
Curry, 736 F.3d 1287, 1297 (9th Cir. 2013). Abara presented “the legal theory and
operative facts” of his arguments in grounds 1, 2, and 7 to the Nevada Supreme
Court, so these grounds are exhausted. Davis v. Silva, 511 F.3d 1005, 1011 (9th
Cir. 2008). The district court erred in dismissing these grounds in Abara’s
amended petition.
Ground 8 of the amended petition is duplicative of ground 2 in the amended
petition, and Abara does not claim that he was prejudiced by the district court’s
decision to dismiss the duplicative claim rather than consolidate the grounds for
relief. Therefore, the district court did not err in dismissing ground 8.
The district court erred in dismissing ground 9 of the amended petition as
conclusory and unexhausted. Abara sufficiently explained in ground 9 how the
jury instructions prejudiced him, and the district court’s contrary conclusion was
erroneous. Ground 9 was exhausted because Abara presented “the legal theory and
operative facts” of his argument in ground 9 to the Nevada Supreme Court. Davis,
511 F.3d at 1011.
2
AFFIRMED as to ground 8. REVERSED and REMANDED as to
grounds 1, 2, 7, and 9.
3