Booker

MEMORANDUM **

Plas B. Booker, a Nevada state prisoner, appeals the district court’s judgment dismissing his 28 U.S.C. § 2254 petition. We have jurisdiction to review pursuant to 28 U.S.C. § 2258 .

Booker contends that he properly exhausted his claim for ineffective assistance of counsel for failure to file an appeal in state court. However, the district court properly found the claim unexhausted. Although Booker cited to Roe v. Flores-Ortega, 528 U.S. 470 , 120 S.Ct. 1029 , 145 L.Ed.2d 985 (2000), in his state petition, Booker fundamentally altered the factual predicate of his claim in his federal petition by alleging an additional fact not alleged in his state petition: that he asked his counsel to file a notice of appeal and his counsel failed to do so.

Included in the issue of exhaustion is the question of whether the district court should have offered a stay among other options. In deeming the petition a mixed petition, the district court ordered Booker to choose between (1) abandoning his unexhausted claim and going forward on the properly exhausted claims, or (2) returning to state court to exhaust the unexhausted claims. The district court denied the option of a stay…