                                                                           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                           NOT FOR PUBLICATION                             OCT 14 2015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.




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