Schriro

MEMORANDUM **

I

James Larry Smith did not adequately present his federal due process claim. Smith’s petition to the Arizona Court of Appeals only tangentially referenced federal law through citation to Arizona cases citing federal cases that do not squarely address the due process issue he now presses on appeal. This is insufficient to satisfy the rule of fair presentment. See Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir.2005) (In state court, petitioner must “describe both the operative facts and the federal legal theory on which his claim is based.” (internal quotation and citation omitted)).

Smith contends that even if he did not fairly present the federal claim, federal review is not barred in light of Schlup v. Delo, 513 U.S. 298 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995). Smith has failed to show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 327 , 115 S.Ct. 851 (internal quotation and citation omitted). Even without the testimony from Detective Whitson, there is sufficient evidence to support the jury’s verdict. It would be unreasonable to conclude that no juror would have found Smith…