FILED

NOT FOR PUBLICATION

NOV 06 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL DUANE WILSON, No. 17-15153

Petitioner-Appellant, D.C. No. 3:14-cv-00071-RCJ-VPC v.

ROBERT LEGRAND, Warden; and MEMORANDUM*

ATTORNEY GENERAL FOR THE

STATE OF NEVADA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding

Submitted October 19, 2018** San Francisco, California

Before: WALLACE, KLEINFELD, and GRABER, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Michael Duane Wilson, a Nevada state prisoner, appeals from the district

court’s order denying his petition for writ of habeas corpus. We have jurisdiction

pursuant to 28 U.S.C. §§ 1291 and 2253. We AFFIRM.

Wilson asserts six separate “Grounds” for habeas relief. Ground One is

divided into subsections 1(a), 1(b), and 1(c): 1(a) challenges the sufficiency of the

evidence to support a conviction under the standard set forth in Jackson v.

Virginia, 443 U.S. 307 (1979); 1(b) challenges the state trial court’s decisions to

deny Wilson’s pretrial motions for improper grand jury involvement, improper

forum-shopping, and failure to sever the counts; and 1(c) challenges the standards

of review applied by the trial court in denying Wilson’s motion for judgment of

acquittal or new trial. Wilson argues that the three Ground One subsections are

part of one overarching claim for insufficient evidence under Jackson.

The district court dismissed all six Grounds for habeas relief. In dismissing

Ground One, the district court analyzed subsections 1(a), 1(b), and 1(c) as separate

claims. Claim 1(a) was denied on the merits. Claims 1(b) and 1(c) were dismissed

for lack of exhaustion “to the extent they set forth federal constitutional claims

separate from the insufficiency of evidence claim” in claim 1(a). (Emphasis

added.) The other Grounds were similarly denied on the merits or dismissed for

lack of exhaustion.

2 A motions panel of this court granted a Certificate of Appealability limited

to the following issues: “whether the district court erred by (1) reorganizing

Ground One in the amended habeas petition, and (2) finding that the reorganized

subclaims were unexhausted.” We review the district court’s dismissal for lack of

exhaustion de novo, but may also affirm on any ground supported by the record.

Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005); White v. Klitzkie, 281

F.3d 920, 922 (9th Cir. 2002).

The district court properly considered the Ground One subsections as

separate claims. As alleged in the petition, 1(b) and 1(c) are irrelevant to a due

process claim under Jackson. Cf. Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th

Cir. 2008) (“[A] petitioner has ‘fairly presented’ a claim not named in a petition if

it is ‘sufficiently related’ to an exhausted claim.”). Wilson argues that 1(b) and

1(c) “enhance” the Jackson claim because the trial court and justice court both

viewed the evidence to be weak.1 Jackson, however, requires considering the

sufficiency of the evidence—not what different courts or judges thought about the

evidence. See United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en

banc) (holding that a “reviewing court must [first] consider the evidence presented

1 Justice courts are state courts in Nevada with limited jurisdiction over criminal matters. 3 at trial in the light most favorable to the prosecution” under Jackson (emphasis

added)).

We affirm the district court’s judgment dismissing the 1(b) claim. Claim

1(b) can be divided into three subclaims. The claimed improper grand jury

involvement, failure to sever, and improper forum-shopping claims were not

federalized and are unexhausted. See Petrocelli v. Baker, 869 F.3d 710, 725 (9th

Cir. 2017), cert. denied, 138 S. Ct. 984 (2018); Galvan v. Alaska Dep’t of Corr.,

397 F.3d 1198, 1205 (9th Cir. 2005) (holding petitioners asserting federal

constitutional claims must “explicitly alert[]” state courts that they are making such

claims despite contextual inquiry as to exhaustion).

We also affirm the dismissal of the 1(c) claim. The 1(c) claim is either

duplicative of the 1(a) Jackson claim or a matter of state law. The district court

found 1(c) unexhausted only to the extent that it alleged a separate claim from the

general 1(a) Jackson claim. If Wilson meant to collapse 1(a) and 1(c) into one due

process claim for insufficiency of evidence, that claim has already been addressed

and denied on the merits. Exhaustion or lack thereof played no role in the denial.

The district court properly reviewed the evidence and the Nevada Supreme Court’s

determination—and not the actions of the trial court. See Murray v. Schriro, 745

F.3d 984, 996 (9th Cir. 2014) (“Under AEDPA, we review the last reasoned

4 state-court decision.”). To the extent the 1(c) claim concerns the application of the

wrong standard of review under state law, separate from any federal due process

concerns, the matter is one merely of state law. See Hudson v. Louisiana, 450 U.S.

40, 44 n.5 (1981) (“Whether a state trial judge in a jury trial may assess evidence

as a ‘13th juror’ is a question of state law”). The 1(c) claim has therefore been

denied properly on the merits as part of the 1(a) Jackson claim or is not a claim

covered under federal habeas. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

(“[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions”); Gutierrez v. Griggs, 695 F.2d 1195, 1199

(9th Cir. 1983) (“Insofar as [the petitioner] simply challenges his conviction as a

matter of state law, § 2254 and, consequently, the doctrine of exhaustion are not

applicable.”).

For these reasons, we AFFIRM the district court’s judgment. We decline to

broaden the Certificate of Appealability. See Hiivala v. Wood, 195 F.3d 1098,

1104 (9th Cir. 1999) (explaining that broadening of a certificate of appealability

requires “substantial showing of the denial of a constitutional right” (quoting 28

U.S.C. § 2253(c)(2))).

AFFIRMED.

5