Binford v. Lambert

32 F. App'x 971

Opinion

MEMORANDUM

**

Robert L. Binford appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition, challenging his jury trial conviction and life sentence for first degree robbery, three counts of first degree assault, taking a motor vehicle without permission, and attempting to elude a pursuing police vehicle. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo a district court’s denial of a habeas petition for failure to exhaust, Johnson v. Zenon, 88 F.3d 828, 828 (9th Cir.1996), and affirm in part, reverse in part, and remand.

Binford argues that the district court erred by finding that he had not exhausted state remedies with respect to claims 3, 4, 8, 12, 13, 15, and 16 of his federal habeas petition. We find error only in the district court’s conclusion with respect to claim 4.

Claim 4 alleges in part that the state violated Binford’s Fifth Amendment right against self-incrimination by commenting in closing argument on his failure to testify at trial. We conclude that Binford has properly exhausted this part¹ of the claim by “fairly presenting” its “substance” to the Washington Supreme Court in claim 5 of his 1998 Petition for Review. See Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam) (internal citation omitted); Packer v. Hill, 277 F.3d 1092,1100 (9th Cir.2002).

We affirm the rest of the district court’s rulings on exhaustion and, in remanding the Fifth Amendment claim in claim 4, we express no opinion on its merits.

AFFIRMED in part, REVERSED in part, and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

1 . Insofar as Binford raises additional constitutional claims in claim 4, the district court did not err in finding that those claims were unexhausted.