                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 25 2014

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



                            FOR THE NINTH CIRCUIT


CARLOS NOGUERA,                                  No. 11-18072

              Petitioner - Appellant,            D.C. No. 3:11-cv-00428-LRH-
                                                 WGC
  v.

ROBERT LEGRAND, Warden and                       MEMORANDUM*
NEVADA ATTORNEY GENERAL,

              Respondents - Appellees.


                  Appeal from the United States District Court
                           for the District of Nevada
               Edward C. Reed, Jr., Senior District Judge, Presiding

                          Submitted February 10, 2014**
                            San Francisco, California

Before: REINHARDT and THOMAS, Circuit Judges, and SESSIONS, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
       Noguera appeals the district court’s dismissal of his habeas corpus petition

for failure to exhaust. We hold that the district court erred in dismissing Noguera’s

petition, as Noguera had exhausted the three claims in question. He raised those

claims on direct appeal to the Nevada Supreme Court and alerted that court that the

claims were federal in nature by citing specific provisions of the federal

Constitution. He also included a statement of the facts that entitled him to relief.

See Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003) (“To satisfy the

exhaustion requirement, the claim must have been presented previously to the

Nevada Supreme Court, ‘includ[ing] reference to a specific federal constitutional

guarantee, as well as a statement of the facts that entitle the petitioner to relief.’”)

(quoting Gray v. Netherland, 518 U.S. 152, 162–63 (1996)).1



REVERSED AND REMANDED.




       1
          The state asserts that Noguera has waived any contention that he exhausted his
claims by not raising this argument below. Even if the state is correct, this Court exercises
its discretion to review waived issues when necessary to prevent a miscarriage of justice.
See Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir. 1985). Such is the case here, as
Noguera was proceeding pro se at the district court and it is clear that the claims at issue
were exhausted, and therefore that his petition was improperly dismissed.
