                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 23 2013

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


TRUETT JOHN WATTS,                               No. 11-35155

              Petitioner - Appellant,            D.C. No. 6:10-cv-00375-HO

  v.
                                                 MEMORANDUM*
RICK COURSEY,

              Respondent - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                        Argued and Submitted July 8, 2013
                                Portland, Oregon

Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.

       An Oregon jury convicted Petitioner Truett John Watts of murder. The

Oregon post-conviction courts rejected Watts’s contention that he received

ineffective assistance of counsel (IAC) at trial. Watts filed a federal habeas

petition raising the same IAC claim he presented in state post-conviction

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
proceedings, and the district court denied the petition. We have jurisdiction over

Watts’s appeal pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

      The Oregon courts did not have a full and fair opportunity to act on the IAC

claim Watts presents here: that trial counsel should have pursued a defense theory

based on Watts’s Paxil ingestion and a rumor that the murder victim might have

sexually abused Watts.1 O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Proper

exhaustion in state court requires a specific statement of operative facts supporting

a claim. Wood v. Ryan, 693 F.3d 1104, 1117 (9th Cir. 2012); Moormann v.

Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005). A claim is not exhausted merely

because the facts relied on by a petitioner in federal court were in the state-court

record. Gulbrandson v. Ryan, 711 F.3d 1026, 1042 (9th Cir. 2013). We affirm

based on Watts’s failure to exhaust his new claim in state court. 28 U.S.C. §

2254(b)(1)(A).

      Alternatively, Watts’s IAC claim lacks merit. See 28 U.S.C. § 2254(b)(2) (a

habeas claim may be denied on its merits despite the petitioner’s failure to

exhaust). Watts denied ever being sexually abused, and even those who harbored

these suspicions denied having any proof that the sexual abuse occurred. Watts

points to no evidence that trial counsel failed to investigate all reasonably possible

      1
          Indeed, Watts did not articulate this allegation in the district court.

                                             2
defense strategies, cf. Wiggins v. Smith, 539 U.S. 510, 524–25 (2003), and presents

no evidence that trial counsel’s decision to pursue an insanity defense, and to

forego a defense built on unconfirmed suspicions, was unreasonable under the

circumstances, see Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011) (stating a

court must “affirmatively entertain the range of possible reasons [] counsel may

have had for proceeding as [he] did.” (internal quotation marks omitted)); Knowles

v. Mirzayance, 556 U.S. 111, 127 (2009) (“The law does not require counsel to

raise every available nonfrivolous defense.”). Accordingly, Watts fails to rebut the

“strong presumption” that counsel rendered effective assistance. Harrington v.

Richter, 131 S. Ct. 770, 787 (2011) (internal quotation marks omitted).

      AFFIRMED.




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