Dennis Kieren, Jr. v. State of Nevada Atty General

AMENDED MEMORANDUM

The State of Nevada appeals the judgment of the district court granting Dennis Kieren’s petition for a writ of habeas corpus. Reviewing the district court’s grant of the petition de novo, see McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th Cir.2008), we reverse and remand.

1. Kieren exhausted his Fifth and Fourteenth Amendments due process claim. Neither of the State’s arguments to the contrary convinces us otherwise. First, a claim may be exhausted even if it is cited in only a reply brief. Cf. Scott v. Schriro, 567 F.3d 573, 582-83 (9th Cir.2009) (per curiam) (holding exhausted a claim raised only in an appendix to a petition for review). Although the state court could have deemed Kieren’s claim waived under Nevada Rules of Appellate Procedure 28(c), it did not. Second, Kieren fairly presented his fair trial due process claim by citing “his right to a fair trial guaranteed by the Sixth Amendment.” The. due process fair trial right and the Sixth Amendment fair trial right are closely intertwined. See Strickland v. Washington, 466 U.S. 668, 684-85 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). And, under the facts of this chse, due process and Sixth Amendment fair…