Brian Brown v. Atty Gen Nvr

MEMORANDUM

The district court found that many, but not all, of the claims asserted in Petitioner-Appellant Brian Lamar Brown’s petition for writ of habeas corpus were unex-hausted and stayed the action to permit Brown to pursue them in state court. When Brown returned to federal court to assert the newly exhausted claims, the district court found that all but one claim did not relate back to the properly exhausted claims in Brown’s original petition. The court denied on the merits the one claim that did relate back and dismissed the remainder of the action with prejudice. Brown timely appealed.

Brown contends that Ground 11 of his amended supplemental petition relates back to Ground 3 of his original petition because both claims allege that the prosecutor made inflammatory or unsupported statements during closing argument. Though Brown asserted in conclusory fashion in his opening brief that Ground 11 relates back to Ground 3, he presented argument in support of this assertion only in his reply brief. Accordingly, the argument is waived. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999) (holding that arguments “fully articulated” for the first time in a reply brief “are…