Downing

MEMORANDUM *

The district court was not required to consider dismissing Downing’s unexhausted claims and staying the petition to permit him to return to state court. The district court had discretion to use a “stay and abeyance” procedure, but was neither required to provide such a procedure, nor prohibited from permitting it within reasonable limitations.

The district court did not err in concluding that Downing’s second claim (that the state court’s refusal to appoint a DNA expert violated his rights) was procedurally barred because the Nevada Supreme Court concluded that Downing had waived it in the trial court. The Nevada Supreme Court applied a “raise it or waive it” rule on issues not raised below. 2 Here it is less than clear that a motion for a *580 DNA expert was sought. That the Nevada Supreme Court has reserved the power to reach constitutional questions waived below 3 is not inconsistent with that court’s regular application of its waiver rule, which is routine appellate procedure law in most jurisdictions. Downing has not shown that the procedural bar has been applied inconsistently, 4 or that he suffered actual prejudice from the decision of the trial court not…