FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VINCENT L. FIELDS, 

No. 04-35169 Petitioner-Appellant,

D.C. No.

v.  CV-03-01211-TSZ

DOUG WADDINGTON,

OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Western District of Washington

Thomas S. Zilly, District Judge, Presiding

Argued and Submitted

January 10, 2005—Seattle, Washington

Filed March 21, 2005

Before: Mary M. Schroeder, Chief Judge, Susan P. Graber,

and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Graber

3365
COUNSEL

Suzanne Lee Elliott, Seattle, Washington, for the petitionerappellant. 

Ronda D. Larson, Assistant Attorney General, Criminal Justice Division, for the respondent-appellee.

OPINION

GRABER, Circuit Judge: 

The district court dismissed a petition for a writ of habeas

corpus for failure to exhaust state court remedies in Washington. The main question before us is whether, in Washington,

briefing a state constitutional claim alerts the state court that

it is called on to decide an independent and parallel federal

constitutional claim, even in the absence of a Washington

3368 FIELDS v. WADDINGTON
case holding expressly that the two claims are substantively

identical. We answer that question “no” and, therefore, affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 8, 1994, Scott Holm was murdered. Two

days later, Petitioner Vincent Fields charged more than

$2,000 on Holm’s credit cards. Petitioner was charged with

second-degree murder, second-degree theft, and drug-related

crimes. A jury found him guilty on all counts. The Washington Court of Appeals affirmed the theft and drug convictions

but reversed his second-degree murder conviction due to an

erroneous jury instruction. At a second trial, a jury again

found Petitioner guilty of second-degree murder. 

Petitioner, acting pro se, filed a Personal Restraint Petition

(“PRP”) in state court challenging the constitutionality of his

second trial on several grounds.1 Only three of those grounds

are at issue in this appeal. As now relevant, Petitioner claimed

that the trial court erred in (1) failing to furnish him with a

personal copy of the second amended information,2 (2) allowing the prosecution to impeach him with a prior conviction

not charged in the second amended information, and (3) failing to credit against his sentence the time Petitioner had spent

in jail between his first conviction, which was later overturned, and his second conviction. The Washington Supreme

Court corrected the amount of a fine but otherwise dismissed

Petitioner’s PRP. 

Petitioner filed a timely petition for a writ of habeas corpus

in federal district court, challenging only his second-degree

murder conviction. He raised nine claims for relief. The dis1Petitioner filed a total of six PRPs in Washington state courts. The

fourth PRP that Petitioner filed is the one at issue in this case, so we refer

only to Petitioner’s fourth PRP. 

2Petitioner’s counsel, however, was provided two copies of the

amended information. 

FIELDS v. WADDINGTON 3369
trict court reviewed, and denied on the merits, three of Petitioner’s claims. The remaining six claims, including the three

at issue here, the court dismissed as unexhausted or procedurally barred. Accordingly, the court denied the petition. 

Petitioner timely appealed and has a certificate of appealability on one question: whether he properly exhausted the

claims that the district court held were unexhausted. Petitioner

concedes that all but three of his claims were not exhausted;

as to those three, which we have described, he contends that

he fairly presented his federal claims to the Washington

courts and, therefore, that the district court should have

reviewed those claims on the merits.

STANDARD OF REVIEW

We review de novo a district court’s denial of a writ of

habeas corpus for failure to exhaust. Vang v. Nevada, 329

F.3d 1069, 1072 (9th Cir. 2003). This petition is governed by

the Antiterrorism and Effective Death Penalty Act of 1996.

Consequently, we may grant relief only if the state court’s

decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States; or . . . was based on

an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d). 

DISCUSSION

[1] We may review the merits of Petitioner’s habeas petition only if he exhausted state court remedies. Galvan v.

Alaska Dep’t of Corr., 397 F.3d 1198, 1201-02 (9th Cir.

2005); see also 28 U.S.C. § 2254(b)(1)(A) (“An application

for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted

unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State[.]”). To satisfy the

3370 FIELDS v. WADDINGTON
exhaustion requirement, he had to “fairly present” the federal

claims in state court “to give the State the opportunity to pass

upon and correct alleged violations of its prisoners’ federal

rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (per

curiam) (internal quotation marks omitted); see also Baldwin

v. Reese, 124 S. Ct. 1347, 1351 (2004) (holding that, ordinarily, for a petitioner to “fairly present” federal claims to a state

court, the federal issues must be clearly identified in the state

court brief). Petitioner fairly presented federal claims only if

he alerted the state court that his claims rested on the federal

Constitution. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th

Cir. 1999) (per curiam) (holding that, when the petitioner

failed to cite federal case law or mention the federal Constitution in his state court briefing, he did not alert the state court

to the federal nature of his claims). In order to alert the state

court, a petitioner must make reference to provisions of the

federal Constitution or must cite either federal or state case

law that engages in a federal constitutional analysis. See

Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (holding that state-exhaustion requirements for a habeas claim are

satisfied when a petitioner cites federal case law or provisions

from the federal constitution or statutes), amended, 247 F.3d

904 (9th Cir. 2001); Peterson v. Lampert, 319 F.3d 1153,

1157-58 (9th Cir. 2003) (en banc) (holding that a citation to

a state court case that provides a federal analysis can “serve[ ]

the same purpose as a federal case analyzing such an issue”).

[2] A habeas petition from a state prisoner, like Petitioner,

who is proceeding pro se may be viewed more leniently for

exhaustion purposes than a petition drafted by counsel. Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003), cert. denied,

124 S. Ct. 1661 (2004); Peterson, 319 F.3d at 1159. With

those standards in mind, we readily conclude that, even viewing Petitioner’s pro se PRP under the more lenient standard,

it did not alert the state court to his federal claims. 

FIELDS v. WADDINGTON 3371
1. Failure to Provide Petitioner with a Personal Copy of the

Second Amended Information

In his federal habeas petition, Petitioner contends that the

trial court violated both his federal Sixth Amendment right to

be informed of the charges against him and his federal Fourteenth Amendment right to due process, by failing to either

provide him personally with a copy of the second amended

information—even though his counsel had the information—

or read the information aloud to him in court. 

[3] Petitioner’s briefing to the state court mentioned the

“federal Constitution” twice, and “due process” once, but discussed an applicable provision of the state constitution

throughout the remainder of the argument. Petitioner’s mere

mention of the federal Constitution as a whole, without specifying an applicable provision, or an underlying federal legal

theory, does not suffice to exhaust the federal claim. See Castillo v. McFadden, No. 03-15715, 2005 WL 427893, at *8

(9th Cir. Feb. 24, 2005) (holding that exhaustion demands

more than a citation to a general constitutional provision,

detached from any articulation of the underlying federal legal

theory). Nor is a federal claim exhausted by a petitioner’s

mention, in passing, of a broad constitutional concept, such as

due process. See Hiivala, 195 F.3d at 1106 (holding that “general appeals to broad constitutional principles, such as due

process, equal protection, and the right to a fair trial, are

insufficient to establish exhaustion” (emphasis added)). 

[4] Petitioner’s state court brief cited only state law cases,

with one exception: Jones v. Barnes, 463 U.S. 745 (1983).

There the Supreme Court held that appointed counsel need

not raise every colorable claim suggested by a client. Id. at

754. Jones bears no relation to Petitioner’s argument that his

constitutional rights (either state or federal) were violated

when the trial court failed to provide him with a personal

copy of the amended information. The citation to Jones did

not exhaust this federal claim because “[c]itation of irrelevant

3372 FIELDS v. WADDINGTON
federal cases does not provide a state court with a fair opportunity to apply controlling legal principles to the facts bearing

upon his constitutional claim.” Castillo, 2005 WL 427893, at

*7 (internal quotation marks omitted). 

2. Impeachment of Petitioner with Prior Conviction Not

Charged in Second Amended Information

Petitioner’s federal habeas petition next asserts that the trial

court erred by allowing the prosecution to impeach him with

a prior conviction that was not charged in the second amended

information. 

[5] Petitioner’s PRP briefing for this claim provided even

fewer references to federal constitutional law than his previous claim. He used the term “fair trial” twice and the term

“due process” once. But, as we have said, merely mentioning

broad constitutional principles in passing does not suffice to

exhaust federal claims. Hiivala, 195 F.3d at 1106. 

3. Failure to Credit Jail-Time and Good-Time

Finally, in his federal habeas petition, Petitioner argues that

the state trial court failed to give him proper sentencing credit

for the time he spent in jail between his first and second convictions for second-degree murder. 

Petitioner’s PRP briefing for this claim cited no federal

case and made no mention, even obliquely, of the federal

Constitution. Petitioner contends that he fairly presented a

federal due process claim by citing State v. Phelan, 671 P.2d

1212 (Wash. 1983), a state court decision that reviewed the

petitioner’s claims under both state and federal law. When a

petitioner does not label his claim as federal, the mere citation

to a state court case that engages in both a state and federal

constitutional analysis does not suffice to exhaust the federal

claim. See Casey v. Moore, 386 F.3d 896, 912 n.13 (9th Cir.

2004) (“For a federal issue to be presented by the citation of

FIELDS v. WADDINGTON 3373
a state decision dealing with both state and federal issues relevant to the claim, the citation must be accompanied by some

clear indication that the case involves federal issues.”). 

[6] Perhaps recognizing the difficulty of meeting the usual

standard for fairly presenting a claim, Petitioner argues in the

alternative that, under Washington law, due process protections are “largely coextensive” with federal due process protections. Accordingly, by raising state due process claims, he

contends, he simultaneously raised federal ones. The Supreme

Court has left open the question whether raising a state claim

that is “identical” to a federal claim suffices to fairly present

the federal claim. Baldwin, 124 S. Ct. at 1352. But raising a

state claim that is merely similar to a federal claim does not

exhaust state remedies. See Johnson v. Zenon, 88 F.3d 828,

830 (9th Cir. 1996) (holding that a petitioner does not raise

federal claims by implication when raising state claims even

if the two are “essentially the same”); Duncan, 513 U.S. at

366 (holding that “mere similarity of claims is insufficient to

exhaust”). 

[7] Even if we were to assume that raising identical state

and federal claims satisfied exhaustion requirements, Petitioner would not have exhausted his state court remedies

because he failed to show that his claims would be treated

identically. In some circumstances, the Washington Supreme

Court treats due process rights under the federal and state constitutions as coextensive. See, e.g., In re Matheson, 12 P.3d

585, 591 (Wash. 2000) (concluding that state and federal due

process claims are the same in the context of an inmate’s right

to receive a pre-transfer hearing). But Petitioner must show

that the Washington state courts treat his particular claimed

due process violations identically under both the state and

federal constitutions. See Howell v. Mississippi, 125 S. Ct.

856, 859 (2005) (per curiam) (looking to state case law to see

whether the state courts have treated a claimed constitutional

violation regarding a jury instruction under state law identically to its treatment under the federal Constitution). Peti3374 FIELDS v. WADDINGTON
tioner has failed to cite Washington cases that apply state and

federal due process protections identically in the contexts of

the claims he raised, and we are aware of none. See Casey,

386 F.3d at 914 n.15 (refusing to reach the question whether

the petitioner had raised a federal due process claim because

he failed to cite cases holding that his Washington and federal

claims were identical). 

Despite the absence of Washington cases directly on point,

Petitioner has a novel theory to explain why, in his view, the

Washington courts were alerted to the presence of his federal

claims and why his state and federal constitutional claims are

identical. To understand his theory, we must turn to Washington law. 

[8] In State v. Gunwall, 720 P.2d 808, 811 (Wash. 1986),

the Washington Supreme Court listed several nonexclusive

criteria that a litigant should address when asking the court to

extend broader rights under the state constitution than those

afforded under the federal constitution.3 The purpose of this

requirement is to provide a “principled basis” for the development of Washington’s state constitutional jurisprudence. Id. at

812. When a litigant fails to brief the so-called Gunwall factors, Washington state courts assume that the litigant is not

asserting a claim for broader constitutional protection under

the state constitution and, consequently, apply federal constitutional principles to analyze the claim.4

 There is no indica3The Gunwall court articulated these six criteria: (1) the text of the state

constitution; (2) significant differences in the text of parallel provisions of

the federal and state constitutions; (3) state constitutional and common law

history; (4) preexisting state law; (5) differences in structure between the

federal and state constitutions; and (6) matters of particular state interest

or local concern. 720 P.2d at 811. 

4

See, e.g., In re Marriage of Suggs, 93 P.3d 161, 164 (Wash. 2004)

(“Where, as here, the parties failed to brief the Gunwall factors, this court

will not consider a claim that our state constitution affords greater protection.”); State v. Fire, 34 P.3d 1218, 1224 (Wash. 2001) (“If the party has

not engaged in Gunwall analysis, this court will consider his claim only

FIELDS v. WADDINGTON 3375
tion, however, that Washington applies the Gunwall rule to

assess whether a state court prisoner has exhausted federal

claims in state court. See O’Sullivan v. Boerckel, 526 U.S.

838, 842 (1999) (noting that the purpose of the exhaustion

requirement is to ensure that a state prisoner gives the state

courts an opportunity to act on claims before they are presented to a federal court in a habeas petition). 

[9] Petitioner’s PRP briefing did not discuss the Gunwall

factors. Therefore, he reasons, the state court must have

applied the Gunwall “default” rule and decided his claims

under federal law. But a petitioner’s failure to brief the Gunwall factors does not affirmatively raise federal claims for the

purpose of exhaustion; to the contrary, it merely guides the

state court in reviewing state-law claims. See id. at 813 (noting that the Gunwall criteria will provide courts with a “reasonable and reasoned” means for assessing a claim that state

constitutional protections extend beyond analogous federal

ones). In other words, the absence of Gunwall briefing means

only that the Washington courts will—until some litigant persuades the Washington Supreme Court to the contrary—

analyze a provision of the state constitution under analogous

federal principles. We have found no Washington case suggesting that a Washington court in that circumstance considers the petitioner to have raised an independent federal claim

for the purpose of exhaustion. See Duncan, 513 U.S. at 366

(“If a habeas petitioner wishes to claim that [an action by] a

under federal constitutional law.”); State v. Sullivan, 19 P.3d 1012, 1022

n.73 (Wash. 2001) (“Respondent has not engaged in an analysis of [Gunwall] . . . . Accordingly, we will only consider his due process claim under

federal constitutional law.”); Tellevik v. 31641 W. Rutherford St., 838 P.2d

111, 115-16 (Wash. 1992) (“This court has declined to address independent state constitutional grounds when they have not been thoroughly

briefed and discussed. Because the defendants have not addressed the

Gunwall factors, we only address whether the procedure used meets federal constitutional standards.”) (internal citations and quotation marks

omitted). 

3376 FIELDS v. WADDINGTON
state trial court [violated one of his federal constitutional

rights] he must say so, not only in federal court, but in state

court.” (emphasis added)); cf. Baldwin, 124 S. Ct. at 1351

(noting that “[a] litigant wishing to raise a federal issue can

easily indicate the federal law basis for his claim in a statecourt 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’ ”). 

[10] In the absence of an affirmative statement by the

Washington Supreme Court that it considers a particular state

and federal constitutional claim to be identical, rather than

analogous, or an affirmative statement by the Washington

Supreme Court that failure to raise the Gunwall factors serves

to raise federal claims for the purposes of exhaustion, Petitioner was required to raise his federal claims affirmatively;

we will not infer that federal claims have been exhausted.

Accordingly, Petitioner’s failure to address Gunwall in his

PRP briefing does not avail him. 

[11] We conclude that Petitioner did not raise any of his

three federal claims in his PRP briefing and, consequently,

did not exhaust his state court remedies. 

AFFIRMED. 

FIELDS v. WADDINGTON 3377