Andreozzi

MEMORANDUM *

Leroy Andreozzi challenges the dismissal of his amended habeas petition for failure to exhaust state remedies. In the time between the dismissal of the petition by the district court and oral argument in this case, the California Supreme Court has denied the amended petition. His petition as it stands before this court is therefore fully exhausted.

This Circuit held in a 1988 case that we may reach the merits of a habeas petition dismissed for failure to exhaust where, as here, the claims have been exhausted prior to this Court’s decision. Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir.1988) (“An appellate court, however, may give relief if state remedies are exhausted by the time it acts, even if the remedies were not exhausted when the habeas petition was filed.”).

Although we can reach the merits of Andreozzi’s petition under Sunn , we cannot grant the petition unless we find that the state courts’ decision to deny it involved an unreasonable determination of fact or unreasonable application of U.S. Supreme Court precedent. See 28 U.S.C. § 2254 (d)." However, because the California Supreme Court summarily denied the petition without providing any rationale for…