189 F.3d 882 (9th Cir. 1999)
PETER M. GATLIN, Petitioner-Appellant,v.M.K. MADDING, Warden; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA; PEOPLE OF THE STATE OF CALIFORNIA, Respondents-Appellees.
No. 98-56249
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted July 12, 1999Filed August 25, 1999

[Copyrighted Material Omitted]
Cara DeVito, Berley & DeVito, Woodland Hills, California, for the petitioner-appellant.
Michael C. Keller, Deputy Attorney General, Los Angeles,  California, for the respondents-appellees.
Appeal from the United States District Court  for the Central District of California.  James M. Ideman, District Judge, Presiding.  D.C. No. CV-97-08556-JMI (E).
Before: Melvin Brunetti, Pamela Ann Rymer, and  Barry G. Silverman, Circuit Judges.
RYMER, Circuit Judge:


1
California state prisoner Peter M. Gatlin appeals the district  court's order dismissing without prejudice for failure to  exhaust his 28 U.S.C. S 2254 petition for writ of habeas corpus pursuant to a certificate of appealability (COA) issued by  a motions panel of this court. After briefing had been completed, the state moved to dismiss on the ground that we lack  subject matter jurisdiction to decide the certified issue  because exhaustion is a statutory requirement, not a constitutional issue as required under 28 U.S.C. S 2253(c)(2). We disagree that our subject matter jurisdiction is implicated  whenever the state asserts that a COA issued by judges of this  court has been improvidently granted. Instead, we hold that  objections to a request for a COA in this court must be made  within thirty-five days of the notice of appeal or motion for  COA, as provided by 9th Cir. R. 22-1(c). Because the state  did not resist the COA within thirty-five days of Gatlin's filing of his notice of appeal (which our rules treat as a request  for COA) on the basis now asserted, we decline to consider  its belated challenge. As we agree with the district court on the merits, we affirm.


2
* Following a jury trial in 1994, Gatlin was found guilty of  six counts of second degree robbery and one count of kidnaping. The jury further found true all allegations of Gatlin's  weapon use and prior convictions. Gatlin was sentenced to a  term of 25 years. He appealed to the California Court of  Appeal, arguing (among other things) that the trial court  should have excluded two witnesses's lineup and in-court  identifications of himbecause they were tainted by a prior  impermissibly suggestive identification procedure. Specifically, he claimed that the lineup and in-court identifications  by Jan Murray, a victim of one of the robberies and the kidnaping, and Chung Sim, another victim of one of the robberies, were tainted by their earlier viewing of Gatlin in jail  clothes and handcuffs in municipal court. The taint from that  procedure, he maintained, was sufficient to create a substantial likelihood of misidentification and, as a result, the procedure violated due process. The court of appeal modified the  judgment by deleting the one-year enhancement to count six  and changing the total term of imprisonment to 24 years, but  otherwise affirmed.


3
Acting pro se, Gatlin then petitioned for review to the California Supreme Court. In his petition, he argued that "the trial court should have excluded Jan Murray and Chung Sim's live  line-up and in-court identification of appellant." The substance of his argument was presented as follows:


4
This Honorable Court should grant review of this issue on the grounds that the base term for petitioner is the kidnapping charge of Jan Murray. Prior to the incident on December 2, 1993, victim Janet Murray could not identify petitioner. She stated that she only glimpsed a person she did not recognize. Also that the glimpse did not influence her lineup or in-court identification of Gatlin.


5
Yet she was unable to pick petitioner out of a six pack photographic lineup prior to the December 2, 1993, incident. Immediately thereafter, she could easily identify petitioner as the person who robbed her.


6
There can be no doubt that this incident of December 2, 1993, had a great deal of effect on the outcome of the trial and sentences of petitioner in the instant case. Therefore, this Honorable Court must remain [sic] for retrial without the tainted line-up information. Petitioner incorporate's [sic] herein the arguments raised by his appellate counsel on Direct Appeal on this issue.


7
Gatlin further stated in his conclusion that "[t]he cumulative errors discussed in this Petition For Review in Argument I  through V herein denied petitioner his State as well as Federal  Constitutional rights to a fair trial." Gatlin's petition for  review was denied.


8
After that, Gatlin filed a petition for writ of habeas corpus  in federal district court claiming that Jan Murray's tainted  lineup and in-court identifications violated due process. The  case was referred to a magistrate judge, who recommended  that the petition be denied and dismissed without prejudice.  He concluded that Gatlin had failed to exhaust his claim that  the identification procedure violated due process because he  did not present his federal constitutional theory to the California Supreme Court. Although Gatlin had attempted to raise  his due process claim in his petition for review to that court  through incorporating by reference his argument to the California Court of Appeal, the magistrate judge found that this  was inadequate because Rule 28 of the California Rules of  Court provides that a petition for review may not incorporate  by reference portions of other documents.


9
The district court adopted the magistrate judge's report and  recommendation and ordered that judgment be entered denying and dismissing the petition without prejudice. After judgment was entered, Gatlin timely filed a notice of appeal. He  also sought a certificate of appealability from the district  court. The district court denied the COA, but this court treated  the notice of appeal as a request for a COA and granted it  with respect to the following issue:


10
Whether appellant has failed to exhaust his claim that one victim's live line-up and in-court identifications were tainted by a prior impermissibly suggestive identification and therefore violated due process, where appellant presented the claim to the state's highest court byincorporating it by reference to arguments made on direct appeal.


11
After the certified issue had been fully briefed and the case  calendared, the state filed a motion to dismiss the appeal,  arguing that this court lacks jurisdiction to decide the issue.

II

12
We must first decide whether we have jurisdiction to hear  this appeal. The state submits that Gatlin's appeal is not properly before us because a COA is a jurisdictional prerequisite,  and Gatlin has not satisfied S 2253's threshold requirement of  showing the violation of a constitutional right1 because the  rule of exhaustion, embodied in 28 U.S.C. S 2254, is a statutory requirement based on principles of comity. Since issues  regarding exhaustion do not arise out of the constitution, the  state contends that we cannot proceed because the COA  should not have been issued and jurisdiction is therefore lacking.


13
Gatlin counters that the COA delineates the denial of a constitutional right because it refers to a denial of due process. He  also argues that the "substantial showing" of a denial of that  right is satisfied by the claim that "one victim's live lineup  and in-court identifications were tainted by a prior impermissibly suggestive identification." In any event, he contends, a  COA was issued and the matter is fully briefed, so we should  not rescrutinize the COA.


14
There is no doubt that issuance of a certificate of  appealability is a jurisdictional prerequisite to appeal. See,  e.g., Gerlaugh v. Stewart, 167 F.3d 1222, 1223 (9th Cir.  1999) ("An appeal may not be taken unless the applicant has made a substantial showing of the denial of a constitutional  right and a certificate of appealability is granted."). That  much is clear from the face of the statute. However, a COA  was issued by this court in this case. Therefore, the question  is whether we may go forward with the appeal based on a  COA that was arguably granted improvidently. We have  never previously considered this question. Nor, so far as we  can tell, have we ever raised such a question sua sponte, as we  would be obliged to do if a correctly issued certificate were  truly jurisdictional. Only the Seventh and Tenth Circuits have  considered a similar conundrum, concluding in Young v.  United States, 124 F.3d 794, 798-99 (7th Cir. 1997), cert.  denied, 118 S. Ct. 2324 (1998), and United States v. Talk, 158  F.3d 1064, 1068 (10th Cir. 1998), cert. denied , 119 S. Ct.  1079 (1999), that an erroneously issued COA (in each case,  by the district court) in a federal habeas proceeding is different from the absence of one and thus does not disable the  court of appeals from proceeding to the merits once the briefs  have been written.2


15
We see no reason to part company with either circuit in  this particular case. Our rules allow for a response to a request  for a COA (or to a notice of appeal, which we treat as the  same thing) within thirty-five days:


16
If the district court denies a certificate of appeala bility as to all issues, petitioner may, within thirty five days of the district court's entry of its order denying a certificate of appealability, file in the court  of appeals a motion for a certificate of appealability along with a statement of reasons why a certificate should issue as to any issue(s). If no motion for a certificate of appealability is filed, the court of appeals will deem the notice of appeal to constitute a request for a certificate of appealability. In either case, the respondent may file a response within  thirty-five days of the notice of appeal or motion, whichever is later.


17
9th Cir. R. 22-1(c). Here the state let that period slide by,  making no objection to the propriety of issuing a COA.  Instead, the state waited until after briefing and calendaring to  ask us to second-guess the motions panel (through which  requests for COAs are processed) on whether the unopposed  COA was properly issued on the basis of a constitutional  claim. We decline to do so. While Congress clearly intended  for the COA mechanism to filter out insubstantial appeals, we  have provided a mechanism for input into that decision. Given  a ready procedure for response by the state to requests for  COAs in this court, it would be counter-productive to require  merits panels to reconsider every one that is issued.


18
Effectively this puts the state on the same footing as a  petitioner, for we expect a petitioner who wants a broader certification than allowed by a district court to file a separate  motion before a motions panel in our court within thirty-five  days of the district court's entry of its order. Petitioners must  do this before they can ask a merits panel to broaden the  scope of the appeal beyond that allowed by a motions panel.  See 9th Cir. R. 22-1(d) & advisory committee's note.


19
We express no view on whether an issue having to do with exhaustion should be certified (either by a district court  or this court). Nor do we mean to foreclose a challenge to the  propriety of a COA issued by a district court--which is not  the posture of the case before us--or in timely response to a  petitioner's request in this court. We simply hold that once a  COA has been issued without objection by this court, the procedural threshold for appellate jurisdiction has been passed  and we need not revisit the validity of the certificate in order  to reach the merits.

III

20
Turning to the merits, "[a]n application for a writ of  habeas corpus on behalf of a person in custody pursuant to the  judgment of a State court shall not be granted unless it  appears that the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. S 2254(b)(1)(A). To  satisfy this requirement, a petitioner must "fairly present" the  substance of his claim to the state court. See Picard v.  Connor, 404 U.S. 270, 275 (1971). It is not sufficient to raise  only the facts supporting the claim; rather, "the constitutional  claim . . . inherent in those facts" must be brought to the attention of the state court. See id. at 277.Neither is the exhaustion  requirement satisfied by the mere circumstance that the "due  process ramifications" of an argument might be "selfevident." See Anderson v. Harless, 459 U.S. 4, 7 (1982).  Instead, "a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well  as a statement of the facts which entitle the petitioner to relief." Gray v. Netherland, 518 U.S. 152, 162-63 (1996). "If  a habeas petitioner wishes to claim that an evidentiary ruling  at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only  in federal court, but in state court." Duncan v. Henry, 513  U.S. 364, 366 (1995) (per curiam).


21
To exhaust a habeas claim properly, a petitioner must  present his claim to the state supreme court even if that  court's review is discretionary. See O'Sullivan v. Boerckel,  119 S. Ct. 1728, 1732-33 (1999). Because California's  "established, normal appellate review procedure is a twotiered system," id., Gatlin was required to exhaust his habeas  claims in a petition for review to the California Supreme  Court. See Cal. R. of Ct. 28(b) (describing procedure for seeking review of a decision of the court of appeal).


22
Gatlin's petition for review to the California Supreme  Court did not "fairly present" his due process identification  claim. While Gatlin adequately described the factual basis for  his claim, he nowhere identified the federal legal basis for his  claim. The statement in the conclusion of his petition that the  "cumulative errors discussed in this Petition For Review in  Argument I through V herein denied petitioner his State as  well as Federal Constitutional rights to a fair trial," is insufficient. "[I]t is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the  `substance' of such a claim to a state court. " Gray, 518 U.S.  at 163.


23
Gatlin argues that under California Rule of Court  28(e)(2), which provides that "[t]he statement of an issue will  be deemed to comprise every subsidiary issue fairly included  in it," he raised his due process claim by asserting the factual  basis for it. However, the statement of issues required by Rule  28(e)(2) is meant to "define[ ] the scope of the issues to be  considered on the merits if review is granted." Cal. R. of Ct.  28, advisory committee comment. To read this subsection as  Gatlin urges (to permit a petitioner to raise any legal argument  potentially comprised in a factual description of a claim)  would be to undermine the clear intent of the Rule to limit  review to those issues specifically identified in the petition.  Moreover, such a reading would conflict with California Rule  of Court 28(e)(5), which requires that "[a]ll contentions in  support of the petition shall be included, including all legal  authorities and argument."


24
Gatlin also notes that his petition for review incorporated by reference the due process arguments raised in his  brief to the California Court of Appeal. However, California  Rule of Court 28 expressly prohibits the incorporation by reference of authorities or argument from another document. See  Cal. R. of Ct. 28(e)(5). That Rule 28 is "only a Supreme Court  rule" which the court is not required to enforce, or that it  might irregularly enforce, is of no import. While the consistency of a state court's enforcement of its procedural rules is  relevant in determining whether a petitioner has procedurally  defaulted his claim, see Forrest v. Vasquez, 75 F.3d 562, 564  (9th Cir. 1996), it is irrelevant in this context, which pertains to the distinct question whether Gatlin has exhausted his state  court remedies. See Brown v. Maass, 11 F.3d 914, 914 (9th  Cir. 1993) (per curiam) (distinguishing between exhaustion  and procedural default). In any event, Rule 28 clearly militated againstreviewing the arguments raised in support of the  identification issue before the court of appeal and, as a result,  we may not rely on them in evaluating whether Gatlin has  exhausted his state court remedies. See Kellotat v. Cupp, 719  F.2d 1027, 1031 (9th Cir. 1983) (concluding that the presentation of an issue in a petition to the Oregon Supreme Court was  inadequate because the court's policies militated against  reviewing the issue).


25
Regardless, Gatlin maintains that in this particular case, the  California Supreme Court violated Rule 28 and actually did  consider the arguments he incorporated by reference. In support, he points to the California Supreme Court's summary  denial of a habeas petition filed in that court after his notice  of appeal was filed in this case. However, we decline to consider either the petition or the ruling because neither document was before the district court. See Fed. R. App. P.  10(a)(1); Kirshner v. Uniden Corp. of Am., 842 F.2d 1074,  1078 (9th Cir. 1988) (refusing to consider papers that were  not filed with the district court, or considered by it when it  entered the order challenged on appeal). In addition, we  decline to take judicial notice of the fact that after his notice  of appeal was filed, Gatlin filed, and the California Supreme  Court denied, a state habeas petition in order to determine  whether state remedies are currently available to Gatlin. "The  appropriate time to assess whether a prisoner has exhausted his state remedies is when the federal habeas petition is filed,  not when it comes on for a hearing in the district court or  court of appeals." Brown, 11 F.3d at 915. Whether Gatlin currently has state remedies available to him may be raised when  and if Gatlin files another habeas petition in the district court.3


26
Finally, Gatlin argues that the district court should  have ignored his failure to exhaust and addressed the merits  of his claim, and should have liberally construed his pro se  pleadings. Both contentions are incorrect. While the district  court could have ignored Gatlin's failure to exhaust and  reached the merits of his petition, see 28 U.S.C. S 2254(b)(2),  it was not required to do so. Nor was the district court obliged  to construe Gatlin's papers liberally merely because he was  proceeding pro se in the California Supreme Court. See Rose  v. Lundy, 455 U.S. 509, 520 (1982) (exhaustion requirement  applies equally to pro se litigants because "[j]ust as pro se  petitioners have managed to use the federal habeas  machinery, so too should they be able to master this straightforward exhaustion requirement").


27
AFFIRMED.



Notes:


1
 As amended by the Antiterrorism and Effective Death Penalty Act  (AEDPA), 28 U.S.C. S 2253(c) states: (1) Unless a circuit justice or judge issues a certificate of appeal-ability, an appeal may not be taken to the court of appeals from- (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255.  (2) A certificate of appeal ability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appeal ability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).


2
 Judge Easterbrook reasoned as follows in Young:
The certificate is a screening device, helping to conserve judi cial (and prosecutorial) resources. The obligation to identify a specific issue concentrates the parties' attention (and screens out weak issues); the limitation to constitutional claims also reduces the number of appeals while simultaneously removing a category of claim that . . . has poor prospects. Once a certificate has issued, however, the case proceeds to briefing and decision; the resources have been invested. It is too late to narrow the issues or screen out weak claims. Perhaps a motion to dismiss an appeal on the ground that a certificate was improperly issued would serve some function. But once the briefs have been written and the case heard, there is little point in scrutinizing the certificate of appealability. An obligation to determine whether a certificate should have been issued, even if the parties do not present this issue for decision--a step entailed by the conclusion that a proper certificate is a jurisdictional requirement--would increase the complexity of appeals in collateral attacks and the judicial effort required to resolve them, the opposite of the legislative plan.
Young, 124 F.3d at 799.


3
 Likewise, questions concerning whether Gatlin's petition would be  barred by AEDPA's one-year statute of limitations, see 28 U.S.C.  S 2244(d), and whether his due process identification claim would be procedurally defaulted, are to be decided by the district court in the event  Gatlin files another petition.


