Thorward

MEMORANDUM ***

*569 Robin Thorward filed an abandonment of appeal of his state convictions pursuant to California Rule of Court 38, resulting in a dismissal of the appeal and issuance of remittitur. Thorward filed a habeas corpus petition in state court, and after failing there, another one in federal court, challenging the effective assistance of his appellate counsel in the decision to abandon his appeal. After an evidentiary hearing, the district court found that Thorward asked his counsel to abandon his appeal, and did not countermand that order until after she had filed the abandonment form. The court therefore held that Thorward’s Sixth Amendment rights were not violated. We affirm.

The two issues that Thorward raises on appeal, inadequate consultation by appellate counsel and failure to recall the remit-titur, were not exhausted in state court as AEDPA requires. See Gray v. Netherlands 518 U.S. 152, 161-62 , 116 S.Ct. 2074 , 135 L.Ed.2d 457 (1996) ( 28 U.S.C. § 2254 (b) requires that petitioners present to the state court both the facts necessary to state a claim for relief and the federal legal theory on which that claim is based). He also has not shown that either of…