Barbara Pinkston v. Sheryl Foster

MEMORANDUM

The District Court granted Barbara Pinkston’s petition for a writ of habeas corpus under 28 U.S.C. § 2254 , based on Ground Three of her petition. The State of Nevada appeals. We reverse the district court’s judgment and remand the case for consideration of Pinkston’s remaining claims.

A petitioner generally must exhaust available state remedies before a federal court may hear her habeas petition. 28 U.S.C. § 2254 (b); see Smith v. Baldwin, 510 F.3d 1127, 1137-38 (9th Cir.2007) (en banc). Pinkston did not present the Nevada Supreme Court with the opportunity to decide her claim that the lack of distinction between premeditation and deliberation in the jury instructions violated her federal due process rights. Her direct appeal to that court on this instructional issue alleged only a violation of state due process. Her state habeas petition argued that appellate counsel’s failure to federalize the jury instruction claim and failure to seek rehearing after Byford v. State, 116 Nev. 215 , 994 P.2d 700 (2000), constituted ineffective assistance of counsel.

Nonetheless, her claim is now technically exhausted because no state remedies remain available. See Johnson v.…