                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 24 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RODNEY EMIL,                                  No. 14-17177

              Petitioner - Appellant,         D.C. No. 3:02-cv-00311-MMD-WGC

 v.
                                              MEMORANDUM*
RENEE BAKER and
ADAM PAUL LAXALT,

              Respondents - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Miranda M. Du, District Judge, Presiding

                        Argued and Submitted June 17, 2016
                             San Francisco, California

Before: CLIFTON and IKUTA, Circuit Judges and HAYES,** District Judge.

      Petitioner Rodney Emil appeals from the district court’s denial of his 28

U.S.C. § 2254 habeas corpus petition. We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable William Q. Hayes, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
      Emil argues that the district court erred in concluding that he failed to

exhaust his federal claim in state court. A federal court may not grant habeas relief

to a state prisoner unless he has properly exhausted his remedies in state court. See

28 U.S.C. § 2254(b); Coleman v. Thompson, 501 U.S. 722, 731 (1991). “Our rule

is that a state prisoner has not ‘fairly presented’ (and thus exhausted) his federal

claims in state court unless he specifically indicated to that court that those claims

were based on federal law.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000),

amended on other grounds, 247 F.3d 904 (9th Cir. 2001). “[F]or purposes of

exhaustion, a citation to a state case analyzing a federal constitutional issue serves

the same purpose as a citation to a federal case analyzing such an issue.” Peterson

v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003).

      In this case, Emil fairly presented his federal claim to the Supreme Court of

Nevada. In his brief on direct appeal, he argued that his due process rights had

been violated by the failure of the state to give sufficient notice in the information

that it was going to proceed on an aiding and abetting theory. Emil relied on

Simpson v. Eighth Judicial District Court, 503 P.2d 1225 (Nev. 1972), in support

of his argument. Because Simpson explicitly rested on federal due process, Emil

fairly presented a federal claim to the state court.




                                            2
      Although the district court erred in concluding that Emil failed to fairly

present his federal claim, “we may affirm the district court’s decision based on any

reason finding support in the record.” Welch v. Fritz, 909 F.2d 1330, 1331 (9th

Cir. 1990). In Emil’s direct appeal, the Nevada Supreme Court held that Emil was

not deprived of due process, though the information failed to mention the specific

theory of aiding and abetting, because the information alleged that Emil and

another man committed the murder in concert, and because the State indicated

during a preliminary hearing that it was proceeding upon a theory that the

defendants “associated themselves with one another” for the purpose of killing the

victim. This was not “contrary to” or “an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,”

28 U.S.C. § 2254(d)(1), because there is no Supreme Court precedent holding that

due process requires an information to specifically allege a theory of aiding and

abetting. See Lopez v. Smith, 135 S. Ct. 1, 3–4 (2014). As a result, Emil cannot

succeed on the merits of his due process claim.

      We decline to issue a certificate of appealability for Emil’s uncertified claim.

      AFFIRMED.




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