Herrera v. Nevada

32 F. App'x 463

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 11, 2002
• Docket: No. 01-15432; D.C. No. CV-95-00727-DWH
• Status: Published

Opinion

MEMORANDUM

*

We conclude, as a preliminary matter, that Herrera’s claims were properly exhausted before the Nevada Supreme Court. A claim may be exhausted if either the petitioner has “fairly presented” the claim to the highest state court, Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), or if the highest state court actually considered the claim and rejected it on the merits. Cf. Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (“If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available.”).

Herrera’s ineffective assistance of counsel claim was both fairly presented to and actually adjudicated by the Nevada Supreme Court during state court habeas proceedings because both Herrera, in his filings in the state district court, and the Nevada Supreme Court, in its opinion, described the facts underlying the claim and cited to federal cases. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). In addition, in its opinion denying Herrera’s direct appeal, the Nevada Supreme Court actually considered Herrera’s claim that the introduction of hair sample evidence violated his confrontation clause and due process rights because it discussed the facts underlying this claim and applied to them the federal constitutional harmless error standard.

On the merits, we affirm for the reasons stated by the district court in its Memorandum Decision and Order filed on September 19, 2000.

AFFIRMED.

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 Ninth Circuit Rule 36-3.