                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 30 2015

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

LAUSTEVEION DELANO JOHNSON,                      No. 12-16844

              Petitioner - Appellant,            D.C. No. 2:08-cv-01363-JCM-RJJ

  v.
                                                 MEMORANDUM*
DWIGHT NEVEN, Warden and
ATTORNEY GENERAL OF THE STATE
OF NEVADA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                    James C. Mahan, District Judge, Presiding

                     Argued and Submitted November 5, 2013
                              Seattle, Washington

Before: KOZINSKI, PAEZ, and BERZON, Circuit Judges.

       Lausteveion Delano Johnson appeals the district court’s judgment denying

his petition for habeas relief under 28 U.S.C. § 2254. The district court dismissed

Johnson’s petition for failure to exhaust, concluding that Johnson’s state habeas



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
petition and his untimely appeal of the denial of that petition, among other attempts

at securing post-conviction relief, did not “fairly present” his claims to the Nevada

state courts, and therefore that he still had a state remedy available to him.1 We

conclude that the district court erred with respect to Grounds One, Two, and Four,

and reverse and remand for further proceedings.

      “A petitioner fully and fairly presents a claim to the state courts if he

presents the claim (1) to the correct forum; (2) through the proper vehicle; and (3)

by providing the factual and legal basis for the claim.” Scott v. Schriro, 567 F.3d

573, 582 (9th Cir. 2009) (internal citations omitted). Johnson presented Grounds

One, Two, and Four of his amended federal habeas petition to the Nevada courts,

through a habeas petition, the proper vehicle, filed in state district court which he

untimely appealed to the Nevada Supreme Court, the proper forum. The petition

provided the factual and legal bases for these three claims. Therefore, Johnson

fairly presented Grounds One, Two, and Four.




      1
       In addition to arguing that Johnson’s state habeas petition was procedurally
inadequate, the State argued before the district court that the facts and law that
Johnson presented in his federal petition were not sufficiently similar to those he
presented in his state petition to constitute fair presentation. The district court did
not address this second argument, and, as the State has not raised it on appeal, it is
waived.

                                           2
      The Nevada Supreme Court, however, did not review Johnson’s claims,

because Nevada law deprives it of jurisdiction over untimely appeals. Lozada v.

State, 871 P.2d 944, 946 (1994). The late appeal does not mean that Johnson did

not fairly present these claims, but only that these claims are “procedurally barred

under the independent and adequate state ground doctrine, which prohibits federal

habeas review ‘when a state court declined to address a prisoner's federal claims

because the prisoner had failed to meet a state procedural requirement.’” Correll v.

Stewart, 137 F.3d 1404, 1417 (9th Cir. 1998) (quoting Coleman v. Thompson, 501

U.S. 722, 732 (1991)). We therefore agree with Johnson that his untimely appeal

resulted in a procedural default of Grounds One, Two, and Four, and that no

further exhaustion is required.

      However, Johnson did not fairly present Ground Three of his federal

petition, as he presented that claim exclusively through an extraordinary writ

petition. See Pitchess v. Davis, 421 U.S. 488, 490 (1975). Johnson argued before

the district court that he can show cause and prejudice under the federal standard.

He can therefore argue cause and prejudice to the Nevada state court, as “Nevada’s

‘cause and prejudice’ analysis and the federal ‘cause and prejudice analysis’ are

nearly identical,” and a finding of cause and prejudice would excuse his state

procedural default. Robinson v. Ignacio, 360 F.3d 1044, 1052 n.3 (9th Cir. 2004).


                                          3
Because relief remains available from the Nevada state court, Ground Three is

unexhausted.

      Johnson’s federal habeas petition is therefore a mixed petition. We remand

to the district court so that it may consider whether to stay and abey Johnson’s

federal petition while he pursues state relief on Ground Three. Rhines v. Weber,

544 U.S. 269, 278 (2005). Should it conclude that Johnson cannot meet the Rhines

test, the district court should offer Johnson the opportunity to amend his federal

habeas petition to dismiss Ground Three. King v. Ryan, 564 F.3d 1133, 1141 (9th

Cir. 2009).

      REVERSED AND REMANDED.




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