                                                                           FILED
                            NOT FOR PUBLICATION                             APR 13 2010

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JOSE A. LOPEZ,                                   No. 07-56146

              Petitioner - Appellant,            D.C. No. CV-04-08411-GPS

  v.
                                                 MEMORANDUM *
DEBRA DEXTER, Warden Substituted
for Joe McGrath,

              Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Central District of California
                   George P. Schiavelli, District Judge, Presiding

                             Submitted April 9, 2010 **
                               Pasadena, California

Before: SILVERMAN and GRABER, Circuit Judges, and SCULLIN,*** Senior
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Frederick J. Scullin, Jr., Senior United States District
Judge for the Northern District of New York, sitting by designation.
                                           -2-

      Petitioner Jose Lopez appeals the district court’s denial of the petition for

writ of habeas corpus that he filed pursuant to 28 U.S.C. § 2254. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm.

      The only claim at issue on appeal is whether Petitioner’s appellate counsel

provided ineffective assistance for failing to communicate with him in Spanish

and, as a result, failing to discover a “potentially meritorious” claim under Batson

v. Kentucky, 476 U.S. 79 (1986). We do not reach the merits of this claim,

however, because Petitioner failed to exhaust it in state court.

      In § 2254 proceedings, federal courts lacks jurisdiction to review any claim

that a petitioner failed to exhaust in state court. See 28 U.S.C. § 2254(b)(1)(A). In

order to exhaust a claim, a petitioner must “fairly present” to the state supreme

court both the legal and factual basis for the claim. Baldwin v. Reese, 541 U.S. 27,

29 (2004); Robinson v. Schriro, --- F.3d ---- , No. 05-99007, 2010 WL 597358, at

*10 (9th Cir. Feb. 22, 2010). “[T]he petitioner must . . . provide the state court

with the operative facts, that is, ‘all of the facts necessary to give application to the

constitutional principle upon which [the petitioner] relies.’” Davis v. Silva, 511

F.3d 1005, 1009 (9th Cir. 2008) (emphasis added) (quoting Daugharty v. Gladden,

257 F.2d 750, 758 (9th Cir. 1958)).
                                            -3-

       Here, Petitioner’s state habeas filing alleged only that appellate counsel’s

failures prevented him from “expressing himself to appellant [sic] counsel on all

the issues he thinks that prejudiced him.” Petitioner neither specified which issues

he thought prejudiced him, nor described how appellate counsel’s failure to get

Petitioner’s appraisal of such issues affected the outcome of the appellate

proceedings. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Because

Petitioner did not fairly present all operative facts to the state court, he failed to

exhaust his claim. We therefore lack jurisdiction to consider it.

       Moreover, even if we construed Petitioner’s claim as exhausted, Petitioner

did not raise it in his amended petition. Rather, the claim improperly surfaced for

the first time in his traverse to the state’s answer. See Cacoperdo v. Demosthenes,

37 F.3d 504, 507 (9th Cir. 1994). The district court appropriately rejected it on

that basis, and we decline to consider it on appeal. See Robinson v. Kramer, 588

F.3d 1212, 1217 & n.7 (9th Cir. 2009).

       AFFIRMED.
