Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the District of Arizona, John. W. Sedwick, District Judge, Presiding. D.C. No. CV-03-00457-JWS.
Roger Dail McReynolds, pro se, Safford, AZ, for Petitioner-Appellant.
Joseph T. Maziarz, DAG, AGAZ-Office of the Arizona Attorney General (Phoenix), Phoenix, AZ, for Respondent-Appellee.
Before: KOZINSKI, SILVERMAN and TALLMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Arizona state prisoner Roger Dail McReynolds appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition, challenging his conviction for burglary. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, see James v. Pliler, 269 F.3d 1124, 1125 (9th Cir.2001), and we affirm.
McReynolds contends that the district court erred when it concluded he failed to properly exhaust his claims by presenting them in a habeas corpus petition to the Arizona Supreme Court. We disagree.
A state prisoner must exhaust the available state remedies before a federal court may consider the merits of his habeas corpus petition. See 28 U.S. C.§ 2254(b)(1)(A); Nino v. Galaza, 183 F.3d 1003, 1004 (9th Cir.1999). Exhaustion requires that a habeas petitioner present the substance of his claims to the state courts in order to give them a "fair opportunity to act" upon these claims. See O'Sullivan v. Boerckel, 526 U.S. 838, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). In order to exhaust in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief. See Ariz. R.Crim. P.
Page 929.
32.1; Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir.1994) (per curiam).
We agree with the district court that by presenting his claim in a petition for habeas corpus to the Arizona Supreme Court, rather than in a Rule 32 motion for post-conviction relief, McReynolds failed to exhaust available state remedies. See Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (holding that raising a claim in a procedural context in which the merits would not be considered absent special and important reasons does not constitute fair presentation for purposes of exhaustion).
We do not reach the remaining issues in McReynold's Opening and Reply Briefs because they were not certified for appeal. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam); 9th Cir. R. 22-1.
AFFIRMED.