Timothy

MEMORANDUM **

Petitioner Roger Timothy appeals the federal district court’s dismissal of his petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253 . We affirm.

Timothy did not exhaust his claim that his counsel was ineffective for allowing him to plead guilty while knowing Timothy was taking drugs as part of his mental health treatment. The ineffective assistance of counsel claim Timothy raised before state court had a different factual basis. See Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir.1999) (stating a claim is exhausted when the petitioner presents the issue’s factual and legal basis to the state’s highest court). And the Nevada Supreme Court did not consider an ineffective assistance of counsel claim on this factual basis. See Casey v. Moore, 386 F.3d 896 , 916 n. 18 (9th Cir.2004) (“[A] claim is exhausted if the State’s highest court expressly addresses the claim, whether or not it was fairly presented.”).

We decline to expand the certificate of appealability to include a claim that Timothy exhausted his claim that his guilty plea was not knowing or voluntary. A state court claim is not exhausted if the *65 petitioner presents “new…