Rodney Emil v. Renee Baker , 667 F. App'x 277 ( 2016 )

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NOT FOR PUBLICATION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.
3