                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                               JUN 02 2015

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

BRIAN LAMAR BROWN,                                No. 13-16435

              Petitioner - Appellant,             D.C. No. 2:02-cv-00770-PMP-
                                                  PAL
  v.

ATTORNEY GENERAL FOR THE                          MEMORANDUM*
STATE OF NEVADA and ISIDRO
BACA,

              Respondents - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                   Philip M. Pro, Senior District Judge, Presiding

                      Argued and Submitted December 9, 2014
                             San Francisco, California

Before: KOZINSKI, RAWLINSON, and MURGUIA, Circuit Judges.

       The district court found that many, but not all, of the claims asserted in

Petitioner-Appellant Brian Lamar Brown’s petition for writ of habeas corpus were

unexhausted and stayed the action to permit Brown to pursue them in state court.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
When Brown returned to federal court to assert the newly exhausted claims, the

district court found that all but one claim did not relate back to the properly

exhausted claims in Brown’s original petition. The court denied on the merits the

one claim that did relate back and dismissed the remainder of the action with

prejudice. Brown timely appealed.

      Brown contends that Ground 11 of his amended supplemental petition

relates back to Ground 3 of his original petition because both claims allege that the

prosecutor made inflammatory or unsupported statements during closing argument.

Though Brown asserted in conclusory fashion in his opening brief that Ground 11

relates back to Ground 3, he presented argument in support of this assertion only in

his reply brief. Accordingly, the argument is waived. See Smith v. Marsh, 194

F.3d 1045, 1052 (9th Cir. 1999) (holding that arguments “fully articulated” for the

first time in a reply brief “are deemed waived”).

        Brown next requests that we expand the certificate of appealability to

embrace his argument that the district court erred in dismissing this action without

ruling on the merits of the exhausted claims in his original petition. We will do so.

“[J]urists of reason would find it debatable whether the district court was correct”

in failing to reach the originally exhausted claims, and “a ‘quick look’ at the face

of the complaint” reveals that several of the claims colorably allege a constitutional


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violation. See Valerio v. Crawford, 306 F.3d 742, 767 (9th Cir. 2002) (en banc)

(internal quotation omitted).

      The district court apparently construed the petitions Brown filed after

exhausting his claims in state court—which Brown styled “Amended Petition” and

“Amended Supplemental Petition”—as an amended petition with the legal effect of

superseding the exhausted claims in Brown’s original petition. See Cano v. Taylor,

739 F.3d 1214, 1220 (9th Cir. 2014). In fact, the context surrounding Brown’s

post-exhaustion petitions indicates that Brown intended only to supplement his

original petition, not to supplant it. First, the district court’s stay-and-abey order

called on Brown to return to federal court to “amend the Petition to add the

[unexhausted] claims” after litigating those claims to completion in state court.

The language “amend . . . to add” likely suggested to Brown that his original,

exhausted claims would remain in play, and that he needed only to replead the

unexhausted claims after he litigated them to completion in state court. Second,

that Brown would undertake the effort to stay his petition and exhaust his formerly

unexhausted claims only to abandon the exhausted claims in his original petition is

implausible. In construing Brown’s post-exhaustion petitions as “amended” rather

than “supplemental” petitions, the district court failed to construe the petitions

liberally to effectuate Brown’s apparent intent. See United States v. Johnston, 988


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F.2d 941, 943 (9th Cir. 1993) (remarking that the “‘unfortunate mislabelling’” of a

pro se prisoner’s petition for habeas corpus relief “‘is not necessarily fatal to

maintaining’” the prisoner’s claims (quoting United States v. Young, 936 F.2d

1050, 1052 (9th Cir. 1991)).

      Accordingly, we reverse the judgment of the district court and remand with

instructions that the district court rule on the merits of the properly exhausted

claims in Brown’s original petition.

      REVERSED AND REMANDED.




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