                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 5 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PABLO SALAS,                                    No.    16-16019

                Petitioner-Appellant,           D.C. No.
                                                1:15-cv-00831-LJO-EPG
 v.

M. D. BITER, Warden,                            MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Lawrence J. O'Neill, District Judge, Presiding

                      Argued and Submitted February 6, 2019
                            San Francisco, California

Before: THOMAS, Chief Judge, PAEZ, Circuit Judge, and FEINERMAN,**
District Judge.

      Appellant Pablo Salas (“Salas”) was convicted of murder in Kern County

Superior Court. A jury found true that the murder was committed during a robbery

(the “robbery-murder special circumstance”) and for the benefit of a criminal street



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
gang (the “gang-murder special circumstance”). Each special circumstance

independently supports a sentence of life imprisonment without parole. See Cal.

Penal Code § 190.2(a)(17)(A), (a)(22).

      Salas filed a habeas petition in federal court, challenging the gang-murder

special circumstance finding but not the robbery-murder special circumstance

finding. The district court determined that it lacked jurisdiction under 28 U.S.C.

§ 2254(a) and dismissed the petition without reaching the merits of Salas’s

challenge. We have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253. We

review de novo the district court’s decision to deny habeas relief and its

determination that it lacked subject-matter jurisdiction. See Bailey v. Hill, 599

F.3d 976, 978 (9th Cir. 2010). We affirm and remand for further proceedings.

      1. This case is governed by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). Under AEDPA, a federal court may grant habeas relief

if it determines a person is “in custody” in violation of his federal constitutional

rights. 28 U.S.C. § 2254(a). The “in custody” requirement is jurisdictional and

“requires a nexus between the petitioner’s claim and the unlawful nature of the

custody.” Bailey, 599 F.3d at 980. When the petitioner seeks a remedy that “does

not directly impact—and is not directed at the source of the restraint on—his

liberty,” the nexus requirement is not satisfied. Id. at 981.

      Here, the robbery-murder special circumstance standing alone requires a


                                           2
sentence of life imprisonment without parole. See Cal. Penal Code

§ 190.2(a)(17)(A). Thus, regardless of the outcome of Salas’s federal habeas

challenge to the gang-murder special circumstance, the length of his custody would

not change and he “would still have to serve the rest of his custodial sentence in

the same manner.” Bailey, 599 F.3d at 981. Accordingly, we hold that the district

court did not err in concluding that it lacked jurisdiction under 28 U.S.C.

§ 2254(a).

      2. After we heard oral argument in this case, Salas filed a petition for writ of

habeas corpus in state court challenging the robbery-murder special circumstance

finding. The petition was denied at each level of the state system.1 Accordingly,

Salas now seeks permission to amend his federal habeas petition to include his

newly exhausted challenge to the robbery-murder special circumstance. See Dkt.

55. We remand to allow the district court to consider in the first instance whether

Salas should be permitted to file an amended petition to include this claim. If the

district court concludes that amendment is appropriate, such that Salas’s challenges

to both special circumstance findings are properly before the court, it may

reconsider its prior jurisdictional ruling. We express no view whether leave to

amend should be granted.



1
      Salas requests that we take judicial notice of the state court habeas
proceedings. See Dkt. 53. We grant the motion.

                                          3
      3. Finally, Salas seeks the appointment of counsel in any remanded district

court proceedings. See Dkt. 55. In the interests of justice, we grant the request and

direct the district court to appoint Meredith Fahn as counsel. See 18 U.S.C.

§ 3006A(a)(2)(B).2

      AFFIRMED and REMANDED for further proceedings.




2
     Salas’s Motion for an Order Directing Adjudication of Appellant’s Newly
Exhausted Claims on Remand (Dkt. 55) is denied as moot.

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