                                                                              FILED
                           NOT FOR PUBLICATION                                 MAY 29 2012

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



                            FOR THE NINTH CIRCUIT


CLEMENTE VILLEGAS BARRERA,                       No. 09-16222

              Petitioner - Appellant,            D.C. No. 1:08-cv-00062-LJO-
                                                 BAK
  v.

ATTORNEY GENERAL OF THE STATE                    MEMORANDUM*
OF CALIFORNIA; RAUL LOPEZ,

              Respondents - Appellees.


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

                       Argued and Submitted May 14, 2012
                            San Francisco, California


Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.

       Petitioner-Appellant Clemente Villegas Barrera (“Barrera”) appeals the

district court’s dismissal of his 28 U.S.C. § 2254 petition for writ of habeas corpus.

Barrera contends the district court: (1) erred in finding claims two and three of the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 2254 petition unexhausted; and (2) abused its discretion in failing to grant

Barrera’s motion to stay his federal petition while he further exhausted his claims

in state court. We affirm in part and reverse in part.

      Barrera raised claims two and three in a pro se habeas application filed in the

California Supreme Court. That court denied the petition with citation to In re

Swain, 34 Cal. 2d 300, 304 (1949), and People v. Duvall, 9 Cal. 4th 464, 474

(1995). These citations indicate the court determined Barrera’s petition was

procedurally deficient for failure to comply with state rules requiring him to

“allege with particularity the facts upon which he would have a final judgment

overturned,” Swain, 34 Cal. 2d at 304, and “include copies of reasonably available

documentary evidence supporting the claim[s], including . . . affidavits or

declarations.” Duvall, 9 Cal. 4th at 474. Though such a deficiency could have been

“cured in a renewed petition,” Barrera’s failure to file a renewed petition in the

California Supreme Court does not per se establish a failure to exhaust state

remedies. See Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986).

      To determine whether Barrera’s claims have been exhausted, this Court must

independently analyze the petition presented to the California Supreme Court to

determine whether Barrera satisfied federal exhaustion requirements and alleged

his claims “with as much particularity as is practicable.” Id. at 1320. Under


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federal exhaustion requirements, Barrera must have “fully and fairly” presented his

claims to the California Supreme Court by alerting the court to the factual basis

for, and federal constitutional nature of, the claims. See Sivak v. Hardison, 658

F.3d 898, 908 (9th Cir. 2011).

      The district court erred in finding claim three unexhausted. Indeed,

Respondent does not defend on appeal the lower court’s exhaustion finding as to

this claim. Barrera alerted the California Supreme Court to the federal nature of

the claim, setting forth the appropriate Strickland standard for ineffective

assistance of counsel claims, citing the Sixth and Fourteenth Amendments to the

United States Constitution, and relying upon numerous federal cases. Barrera also

explained, in a detailed and coherent narrative, the factual basis for this claim.

      However, the district court did not err in finding Barrera’s second claim

unexhausted. Furthermore, given the claim’s weak merits, the district court did not

abuse its discretion by failing to grant Barrera’s request for a stay-and-abeyance

with respect to this claim.

      Claims one and three of Barrera’s § 2254 petition are exhausted. Barrera

was given an opportunity to withdraw unexhausted claims in the court below and

failed to do so, resulting in dismissal of his petition in its entirety. Barrera, who

was acting pro se, may not have understood the consequences of his failure to


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move to withdraw unexhausted claims. Further, the district court refused to stay

and abey Barrera’s petition based on its conclusion that neither claim two nor

claim three was exhausted.

      We remand to the district court in order to permit it to evaluate the petition

anew, in light of the fact that claim three is not unexhausted.

      Each party shall bear its own costs.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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