John David Roettgen v. Dale Copeland, Warden

John David Roettgen, an Arizona state prisoner, appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 petition for habeas corpus. The district court determined that Roettgen had not fairly presented his claims to the Arizona Supreme Court, and dismissed his petition for failure to exhaust available state remedies. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we review de novo. Thomas v. Lewis, 945 F.2d 1119, 1122 (9th Cir.1991). We affirm.

A petitioner has not satisfied the exhaustion requirement unless he has fairly presented his claim to the highest state court. Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.1985), cert. denied, 478 U.S. 1021 , 106 S.Ct. 3336 , 92 L.Ed.2d 741 (1986). Submitting a new claim to the state’s highest court in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation. Castille v. Peoples, 489 U.S. 346, 351 , 109 S.Ct. 1056, 1060 , 103 L.Ed.2d 380 (1989).

Roettgen pled guilty to two counts of aggravated assault. His attorney filed an An-ders brief in the Arizona Court of Appeals, raising only the issue of whether Roettgen’s plea was knowing and…