FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL DAVIS, 

No. 05-16821 Petitioner-Appellant,

D.C. No.

v.  CV 04-0236 GEB

J. SILVA,

OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, District Judge, Presiding

Argued and Submitted

September 27, 2007—San Francisco, California

Filed January 2, 2008

Before: John R. Gibson,* A. Wallace Tashima, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Tashima

*The Honorable John R. Gibson, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation. 

23
COUNSEL

Krista Hart, Sacramento, California, for the petitionerappellant. 

DAVIS v. SILVA 25
Heather M. Armstrong, Deputy Attorney General of the State

of California, Sacramento, California, for the respondentappellee.

OPINION

TASHIMA, Circuit Judge: 

Petitioner Michael Davis appeals the district court’s dismissal of his habeas corpus petition for failure to exhaust. In

the underlying claim, Davis complains that, during a prison

disciplinary hearing resulting in the revocation of good-time

credit, his due process right to call a witness was violated.

Respondent Warden J. Silva (the “State”) contends that

Davis’ claim is unexhausted because he failed to provide the

California Supreme Court with a sufficient factual basis for

his federal claim. We reverse the district court, holding that

Davis did exhaust the factual basis for his claim because he

presented to the state court all the facts necessary to give

application to the constitutional principle upon which he

relies. 

JURISDICTION

The district court had jurisdiction pursuant to 28 U.S.C.

§ 2254, and we have jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253. 

BACKGROUND

Michael Davis is a California state prisoner serving a nineyear sentence for second degree burglary. While in prison, he

allegedly committed a battery against a prison staff employee.1

1The prison employee recounted the alleged assault this way: 

Inmate Davis . . . assigned in the Culinary as a Cart Maintenance,

reported to work at approximately 0630 hours. I noticed Inmate

26 DAVIS v. SILVA
A prison disciplinary hearing was convened. Davis was

found guilty of battery of a staff member and was assessed a

150-day forfeiture of good-time credit. Davis filed a pro se

petition for a writ of habeas corpus in the California Supreme

Court, challenging the constitutionality of the forfeiture. 

For purposes of this appeal, the relevant sections of Davis’

form petition state: 

Petitioner was denied his due process rights under

Wolff v. McDonnell, [1974] 418 U.S. 539 Penal

Code Section 2932 subdivision [A][3] and Title 15,

Cal. Admin, Code Section 3315[E] to have witness.

On or about 1-23-02 notice was received that the

above petitioner violation of section 4501.5 of the

Penal Code was accepted by the District Attorney

Office in Case No SF 08-3942A. In the Superior

Court of California County of San Joaquin [209]

468-2730, and then on the following date. 03-06-02

that case was dismissed interest of justice by the DA

office, the petitioner filed a great white writ of

habeas corpus, on February 13, 2002 in case No.

SF083969A see all exhibits that was given to the

court on the following date May 31, 2002 Supreme

Court of California and exhibits. Also see California

Rules of Court and Title 15, Cal. Admin. Code Section 3315[D] and 3318[B] and the Due Process

Clauses of State and Federal Constitutions. 

Davis on the Grill cooking. I went to Inmate Davis and told him

to remove his food items from the grill, because he is not

assigned as Cook. Therefore, he can not be cooking. Inmate

Davis then stated, “Fuck that I’m getting my shit cooked.” I then

responded, “No your [sic] not.” After ordering Davis to remove

his food, he grabbed it[,] crunched it up and threw it back on the

grill. He then took several steps back. On the table, that was used

to hold pans, was a 6 inch ‘Hotel Pan’ used for Oil (Cooking

Oil). Inmate Davis hit it off the table in my direction. I blocked

it with my “Left” hand. Oil splashed on my arm and shirt. 

DAVIS v. SILVA 27
In another section of the petition, Davis alerted the California

Supreme Court that he was appealing from a lower court, stating that the issue raised below was:

The Due Process Clauses of the State and Federal

Wolff v. McDonnell, [1974] 418 U.S. 539 Penal

Code Section 2932 Sub A-3 Title 15

Cal.Admin.Code Sect 3315 E Title 15, Cal.Admin,

Code Section 3315(d)-3318(b).

Finally, Davis sent to the California Supreme Court a document he titled “Order to Show Cause and Temporary

Restraining Order,” which states that the “petitioner is being

denied his due process rights under Wolff v. McDonnell,

[1974] 418 U.S. 539 . . . .” The California Supreme Court

summarily denied his petition. 

Davis then filed a pro se federal petition for a writ of

habeas corpus, which the State moved to dismiss for failure

to exhaust. It argued that “Davis did not provide the California Supreme Court even one factual statement.” The magistrate judge agreed, reasoning that Davis failed to raise the

factual basis for his claim, and recommended that the district

court dismiss the petition for failure to exhaust. The district

court adopted the magistrate judge’s findings in full and dismissed the petition. Davis, still acting pro se, timely appealed,

and we now reverse.2

STANDARD OF REVIEW

We review a district court’s denial of habeas corpus relief

de novo. Lambright v. Schriro, 490 F.3d 1103, 1113-14 (9th

Cir. 2007).

2After the completion of briefing, we appointed counsel and ordered

supplemental briefing. 

28 DAVIS v. SILVA
DISCUSSION

[1] The exhaustion doctrine, as codified by the Antiterrorism and Effective Death Penalty Act of 1996, provides that

habeas relief must be denied if the petitioner has not “exhausted the remedies available in the courts of the State.” 28

U.S.C. § 2254(b)(1)(A); see also Muhammad v. Close, 540

U.S. 749, 751 (2004) (per curiam) (“Federal petitions for

habeas corpus may be granted only after avenues of relief

have been exhausted.”). Exhaustion requires that a petitioner

“fairly present[ ]” his federal claims to the highest state court

available. Weaver v. Thompson, 197 F.3d 359, 365 (9th Cir.

1999); see O’Sullivan v. Boerckel, 526 U.S. 838, 844-45

(1999) (“Section 2254(c) requires only that state prisoners

give state courts a fair opportunity to act on their claims.”

(emphasis in original)). Fair presentation requires that the

petitioner “describe in the state proceedings both the operative

facts and the federal legal theory on which his claim is based

so that the state courts have a ‘fair opportunity’ to apply controlling legal principles to the facts bearing upon his constitutional claim.” Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir.

2003), overruled on other grounds by Robbins v. Carey, 481

F.3d 1143, 1149 (9th Cir. 2007). Thus, “for purposes of

exhausting state remedies, a claim for relief in habeas corpus

must include reference to a specific federal constitutional

guarantee, as well as a statement of the facts that entitle the

petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-

63 (1996). 

[2] The State concedes that Davis fairly presented the legal

basis of his claim, in that Davis’ petition included a reference

to a specific federal constitutional guarantee, but it contends,

and the district court agreed, that Davis failed to exhaust the

factual basis of his claim. Exhaustion, however, does not

require that a “habeas petitioner . . . present to the state courts

every piece of evidence supporting his federal claims in order

to satisfy the exhaustion requirement.” Chacon v. Wood, 36

F.3d 1459, 1469 n.9 (9th Cir. 1994), superseded on other

DAVIS v. SILVA 29
grounds by 28 U.S.C. § 2253(c) (emphasis in original).

Rather, to exhaust the factual basis of the claim, the petitioner

must only provide the state court with the operative facts, that

is, “all of the facts necessary to give application to the constitutional principle upon which [the petitioner] relies.” Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)); see also

Randy Hertz & James S. Liebman, Federal Habeas Practice

and Procedure § 23.3c, at 1090 (2005) (same).3

[3] Here, Davis relies on the constitutional principle that

due process demands that an inmate facing a disciplinary proceeding have the right to call witnesses. See Wolff v. McDonnell, 418 U.S. 539, 566 (1974). The question before us then

is whether Davis’ state habeas petition provided the California

Supreme Court with all the facts necessary to give application

to this principle. Bearing in mind that “petitions must be read

in context and understood based on the particular words

used,” Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir.

2003) (en banc), and, that “pro se [habeas] petitions are held

to a more lenient standard than counseled petitions,” Sanders

v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003),4 we hold that

3

In Daugharty, for example, the petitioner argued before this Circuit

that the Oregon Supreme Court deprived him of the equal protection of the

laws when it dismissed his appeal because of his financial inability to pay

for an appellate transcript. 257 F.2d at 758. We reasoned that the petitioner exhausted the factual basis of his claim by moving the state supreme

court for an order requiring that a transcript be supplied without expense

stating that such a motion “called attention to his inability to pay for a

[transcript].” Id. The petitioner in Daugharty did not provide copious or

even thorough facts; he provided just enough facts to apply the constitutional principle—that dismissing his lawsuit for lack of ability to pay court

fees deprived him of the equal protection of the laws. 

4

In the exhaustion context, the Supreme Court has admonished lower

courts that the complete exhaustion requirement is not intended to “trap

the unwary pro se prisoner.” See Slack v. McDaniel, 529 U.S. 473, 487

(2000). More generally, the Court has held pro se pleadings to a less stringent standard than briefs by counsel and reads pro se pleadings generously, “however inartfully pleaded.” See Haines v. Kerner, 404 U.S. 519,

520 (1972) (per curiam). 

30 DAVIS v. SILVA
Davis’ state habeas petition provided the state court with sufficient facts to apply the constitutional principle upon which

Davis relies. 

Although Davis does not present a clear narrative, his state

habeas petition explicitly states that he “was denied his due

process rights under Wolff . . . to a witness,” cites a case, a

statute, and a regulation, and notes that he was charged with

the battery of a noninmate. By simply cite checking Davis’

petition, the state court would have had all the facts necessary

to give application to the constitutional principle: he was

charged with assaulting a nonprisoner, a disciplinary hearing

took place to deny him good-time credits, and at that hearing,

he was denied a witness in violation of his due process rights

under Wolff. 

Davis’ state habeas petition mentions that he had received

notice of a “violation of section 4501.5 of the Penal Code.”

Section 4501.5 of the California Penal Code provides that

“[e]very person confined in a state prison of this state who

commits a battery upon the person of any individual who is

not himself a person confined therein shall be guilty of a felony and shall be imprisoned in the state prison for two, three,

or four years, to be served consecutively.” Cal. Penal Code

§ 4501.5 (West 2000). His petition, therefore, makes it plain

that he was charged with “commit[ing] a battery upon” someone who was not himself an inmate. 

Davis also cites California Penal Code § 2932, which governs the denial of good-time credits. It provides, among other

things, the number of days of credit an inmate loses for

engaging in certain proscribed acts. E.g., Cal. Penal Code

§ 2932(a)(2) (“Not more than 180 days of credit may be

denied or lost for a single act of misconduct, except as specified in paragraph (1), which could be prosecuted as a felony

whether or not prosecution is undertaken.”). It also sets out

the procedure by which good-time credits may be revoked

and includes enumerated rights that inmates have in such a

DAVIS v. SILVA 31
proceeding—including the right to call a witness. Id.

§ 2932(c)(3) (“The prisoner may request witnesses to attend

the hearing and they shall be called unless the person conducting the hearing has specific reasons to deny this request. The

specific reasons shall be set forth in writing and a copy of the

document shall be presented to the prisoner.”). 

As previously mentioned, Davis’ petition also refers to

Wolff v. McDonnell, which holds that when a person already

in state custody faces a disciplinary proceeding resulting in

the loss of good-time credit or imposition of solitary confinement, procedural due process demands that the inmate “be

allowed to call witnesses and present documentary evidence

in his defense when permitting him to do so will not be

unduly hazardous to institutional safety or correctional goals.”

418 U.S. at 566. 

Finally, Davis cites the California Code of Regulations,

title 15, § 3315, which sets forth regulations for inmate misconduct and describes the disciplinary proceedings to determine whether rule violations occurred. Cal. Code Regs., tit.

15, § 3315. It classifies the “use of force or violence against

another person” as a “serious rule violation.” Id.

§ 3315(a)(2)(A). Section 3315(e), one of the subsections specifically cited by Davis, is the state regulation pertaining to

the calling of witnesses at a disciplinary hearing. 

[4] The conclusion that Davis failed to exhaust is plausible

only if the petition is construed without referring to the

sources cited by the petitioner. The State contends that under

the Supreme Court’s decision in Baldwin v. Reese, 541 U.S.

27 (2004), federal claims in habeas petitions are not “fairly

presented” if the state court must read the statutes, cases, and

regulations cited in the petition in order to understand the

claim. Baldwin, in fact, suggests just the opposite, as it holds

that a legal theory is fairly presented when a citation is provided to the relevant case law. See, e.g., id. at 32 (“A litigant

wishing to raise a federal issue can easily indicate the federal

32 DAVIS v. SILVA
law basis for his claim in a state-court petition or brief, for

example, by citing in conjunction with the claim the federal

source of law on which he relies or a case deciding such a

claim on federal grounds, or by simply labeling the claim

‘federal.’ ”); see also Insyxiengmay v. Morgan, 403 F.3d 657,

668 (9th Cir. 2005) (stating that the petitioner makes the federal basis of his claim explicit either by specifying particular

provisions of the federal Constitution or statutes, or by citing

to federal case law). Thus, by reiterating that a federal habeas

petitioner exhausts the legal basis of his claim by citing federal case law, the Court recognized that state courts are

expected to refer to sources cited by the petitioner. 

[5] Thus, Davis presented the California Supreme Court

with all “the facts necessary to state a claim for relief.” Gray,

518 U.S. at 162-63. First, Davis stated that he “was denied his

due process rights under Wolff . . . to have witness [sic.].”

Second, he stated that he was charged with battery of a noninmate. And, third, if the state court had simply cite checked the

case, the statute, and the regulation provided in Davis’ petition, and read those sources in conjunction with the rest of his

state habeas petition, the legal theory and operative facts

would have become clear: Davis was charged with assaulting

a nonprisoner, a disciplinary hearing took place to deny him

good-time credits, and, at that hearing, he was denied a witness in violation of his due process rights under Wolff. Compare Baldwin, 541 U.S. at 33 (holding a petition unexhausted

because the “petition provides no citation of any case that

might have alerted the court to the alleged federal nature of

the claim. And the petition does not contain a factual description supporting the claim.” (citations omitted)). 

CONCLUSION

[6] By reading Davis’ pro se state petition generously, as

Circuit precedent demands, and by checking the sources cited

in his petition, as the logic of Supreme Court precedent dictates, the legal theory and factual basis of Davis’ state petition

DAVIS v. SILVA 33
is clear — he alleged that he was denied his due process at a

prison disciplinary hearing that led to revocation of good-time

credit. Because the legal theory and operative facts were

“fairly presented” to the California Supreme Court, Davis factually, as well as legally, exhausted his claim. 

REVERSED and REMANDED.

34 DAVIS v. SILVA