Carlos Noguera v. ROBERT LEGRAND, Warden and NEVADA ATTORNEY GENERAL

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS NOGUERA,
Petitioner - Appellant,
v.
ROBERT LEGRAND, Warden and
NEVADA ATTORNEY GENERAL,
Respondents - Appellees.
No. 11-18072
D.C. No. 3:11-cv-00428-LRH-
WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., Senior District Judge, Presiding
Submitted February 10, 2014**
San Francisco, California
Before: REINHARDT and THOMAS, Circuit Judges, and SESSIONS, District
Judge.***
FILED
FEB 25 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.

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Noguera appeals the district court’s dismissal of his habeas corpus petition
for failure to exhaust. We hold that the district court erred in dismissing Noguera’s
petition, as Noguera had exhausted the three claims in question. He raised those
claims on direct appeal to the Nevada Supreme Court and alerted that court that the
claims were federal in nature by citing specific provisions of the federal
Constitution. He also included a statement of the facts that entitled him to relief.
See Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003) (“To satisfy the
exhaustion requirement, the claim must have been presented previously to the
Nevada Supreme Court, ‘includ[ing] reference to a specific federal constitutional
guarantee, as well as a statement of the facts that entitle the petitioner to relief.’”)
(quoting Gray v. Netherland, 518 U.S. 152, 162–63 (1996)).1
REVERSED AND REMANDED.
1 The state asserts that Noguera has waived any contention that he exhausted his
claims by not raising this argument below. Even if the state is correct, this Court exercises
its discretion to review waived issues when necessary to prevent a miscarriage of justice.
See Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir. 1985). Such is the case here, as
Noguera was proceeding pro se at the district court and it is clear that the claims at issue
were exhausted, and therefore that his petition was improperly dismissed.

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