ve consistently held that where, as here, a petitioner filed a habeas application before the effective date of AEDPA and the district court retained jurisdiction over the case, AEDPA does not apply even if the petitioner files an amended petition after the effective date of AEDPA. See, e.g., Sivak v. Hardison, 658 F.3d 898, 905 (9th Cir.2011) (holding that “[o]ur review is governed by pre-AEDPA standards ... even though Sivak filed amended petitions after AEDPA was enacted”); Allen v. Roe, 305 F.3d 1046, 1049 & n. 1 (9th Cir.2002) (holding that, “[b]ecause Allen filed his § 2254 petition prior to the effective date of [AEDPA], review of his petition is governed by pre-AEDPA law” and holding, in a footnote, that “[b]ecause the district court retained jurisdiction over Allen's original 1993 petition, it is not problematic that the amended petition was filed after the effective date of the AEDPA”); accord Robinson v. Schriro, 595 F.3d 1086, 1098–99 (9th Cir.), cert. denied,––– U.S. ––––, 131 S.Ct. 566, 178 L.Ed.2d 427 (2010); Mancuso v. Olivarez, 292 F.3d 939, 948–49 (9th Cir.2002); see also Stankewitz v. Woodford, 365 F.3d 706, 713 (9th Cir.2004) (assuming, without deciding, that pre-AEDPA standards apply in similar circumstances). As the Supreme Court has explained, the relevant portions of AEDPA apply “only to such cases as were filed after the statute's enactment.”
Because the court found “no mitigating circumstances sufficiently substantial to call for leniency,” Arizona law required the imposition of a death sentence. Ariz. Rev. Stat. § 13–703(E); see also, e.g., Robinson v. Schriro, 595 F.3d 1086, 1094 (9th Cir.), cert. denied,––– U.S. ––––, 131 S.Ct. 566, 178 L.Ed.2d 427 (2010). 3.
As the State implicitly concedes, this rule applies even though Sivak filed amended petitions after AEDPA was enacted. See Robinson v. Schriro, 595 F.3d 1086, 1098–99 (9th Cir.) (applying pre-AEDPA legal standards where initial petition was filed prior to AEDPA's enactment and amended petition was filed after AEDPA's enactment), cert. denied, ––– U.S. ––––, 131 S.Ct. 566, 178 L.Ed.2d 427 (2010); Hamilton v. Ayers, 583 F.3d 1100, 1105 (9th Cir.2009) (same); Jackson v. Brown, 513 F.3d 1057, 1068–69 (9th Cir.2008) (same); accord Smith v. Mahoney, 611 F.3d 978, 993–95 (9th Cir.) (discussing this issue with respect to AEDPA statute of limitations), cert. denied, ––– U.S. ––––, 131 S.Ct. 461, 178 L.Ed.2d 293 (2010). Under pre-AEDPA law:
(passing invocations of " due process" which fail to cite the Federal Constitution or any cases relying on the Fourteenth Amendment could just as easily have referred to due process guarantees of the state constitution and thus did not meet minimal requirement that it must be clear that a federal claim was presented to state court); Fields, 401 F.3d at 1021 (federal claim is not exhausted by a petitioner's mention of a " broad constitutional concept, such as due process"); see also Robinson v. Schriro, 595 F.3d 1086, 1103 (9th Cir.) (noting that petitioner's was not a case where there was a failure to make clear that he was invoking a federal right, as where there is a " mere reference to 'due process' and citation to state case law" which did not involve the federal constitutional claim at issue, or a " general appeal to a constitutional guarantee") (citations omitted), cert. denied, 131 S.Ct. 566, 178 L.Ed.2d 427 (2010). Moreover, the portions of the state cases cited and relied upon in the Petition for Review in connection with such claims do not engage in a federal constitutional analysis.
"[S]o long as the "ultimate question for disposition' has remained the same in state and federal court, ... 'variations in the legal theory or factual allegations urged in its support' are entirely legitimate." Robinson v. Schriro, 595 F.3d 1086, 1102 n.14 (9th Cir.2010) (quoting Picard v.Connor, 404 U.S. 270, 277 (1971)), cert. denied sub nom Ryan v. Robinson, 131 S.Ct. 566 (2010); accord Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir.2007); McKinney v. Artuz, 326 F.3d 87, 97 (2d Cir.2003); Boyko v. Parke, 259 F.3d 781, 788-89 (7th Cir.2001); Weaver v. Thompson, 197 F.3d 359, 364-65 (9th Cir.1999). Petitioner argues that many of his claims are exhausted. The Court agrees.