Lewis

MEMORANDUM *

Robert Smith, a state prisoner convicted of furnishing cocaine, appeals the district court’s denial of his petition for writ of habeas corpus." We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

We note first that Appellee contends that Smith failed to exhaust his ineffective assistance of counsel claim in state court. A state prisoner seeking a federal writ of habeas corpus must first exhaust his federal claim by presenting both the legal substance and the operative facts to the state courts. 28 U.S.C. § 2254 (b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842-45 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999). Nevertheless, because a court may deny a habeas petition on its merits despite the petitioner’s failure to exhaust, we bypass the exhaustion issue and proceed directly to the merits of Smith’s ineffective assistance of counsel claim. See 28 U.S.C. § 2254 (b)(2); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir.2002).

Smith contends that his trial counsel provided ineffective assistance of counsel because her decision not to present allegedly exculpatory testimony from a former co-defendant was based on a misunderstanding of the law. We…