                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 20 2011

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




                            FOR THE NINTH CIRCUIT



MICHAEL XAVIER BELL,                             No. 10-56405

              Petitioner - Appellant,            D.C. No. 2:09-cv-03346-JFW-
                                                 MLG
  v.

GREG LEWIS,                                      MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                     Argued and Submitted November 17, 2011
                               Pasadena, California

Before: GOODWIN, W. FLETCHER, and RAWLINSON, Circuit Judges.

       Michael Xavier Bell appeals the district court’s dismissal of his habeas

petition. We have jurisdiction under 28 U.S.C. § 2253. Because Bell has failed to

exhaust state remedies in light of Graham v. Florida, 130 S. Ct. 2011 (2010), we

vacate and remand to the district court.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         When Bell was fourteen years old, he and an accomplice committed a series

of crimes over a period of hours. A California jury convicted Bell of several

counts of robbery, forcible rape, forcible oral copulation, and attempted

kidnapping. He was sentenced to 54 years to life in state prison. Bell appealed his

sentence to the California Court of Appeal, arguing that it was cruel and unusual

punishment. The Court of Appeal rejected Bell’s argument.

         Several years later, Bell filed a petition for a writ of habeas corpus in district

court. The State filed an Answer, in which it admitted that “the Petition is not

barred by a failure to exhaust state remedies.” After the State filed its Answer, the

U.S. Supreme Court decided Graham, and the district court ordered supplemental

briefing in light of that decision. The State submitted a supplemental brief

discussing the implications of Graham. It did not raise the exhaustion issue in that

brief.

         On this appeal, Bell argues that his sentence of 54 years to life is cruel and

unusual punishment. Bell relies on Graham, which held that the Eighth

Amendment prohibits sentencing a juvenile who did not commit homicide to a life

sentence without parole. Graham, 130 S. Ct. at 2034. Bell argues that the holding

and reasoning in Graham extend to “de facto” life sentences and that his is such a

sentence.


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       The State argues that Bell’s claim is unexhausted, and we agree. The

purpose of the exhaustion requirement is to ensure that state courts are the

principal forum for asserting constitutional challenges to state convictions. See

Harrington v. Richter, 131 S. Ct. 770, 787 (2011). The Graham decision itself

states that “[i]t is for the State, in the first instance, to explore the means and

mechanisms for compliance” with Graham’s holding. Graham, 130 S. Ct. at 2030.

       Although Bell had exhausted state remedies at the time the State filed its

Answer, the intervening Graham decision rendered Bell’s claim unexhausted.

Graham was decided after the state court rejected Bell’s Eighth Amendment claim,

and the state courts have not had an opportunity to determine whether Bell’s

sentence complies with the holding in Graham. Thus, Bell has not exhausted state

remedies.

       Bell argues that the State waived the exhaustion requirement by stating in its

Answer that Bell had exhausted state remedies. That statement is not a waiver. It

is merely a statement that was true at the time it was made. In light of Graham,

however, that statement is no longer true. The State’s failure to raise the

exhaustion issue in its supplemental brief is also not a waiver because it was not

express. See 28 U.S.C. § 2254(b)(3).




                                             3
      The remand will allow the district court to order a stay and abeyance in order

to retain jurisdiction of Bell’s federal habeas petition, in its discretion, while Bell

exhausts available remedies in state court.

VACATED and REMANDED.




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