David ABARA, Petitioner-Appellant, v. Renee BAKER, et al., Respondents-Appellees, 618 F. App'x 347

MEMORANDUM David Abara appeals from the dismissal of his first amended federal petition for a writ of habeas corpus. This court granted a Certificate of Appealability as to grounds 1, 2, 7, 8, and 9 of Abara’s amended petition. Grounds 1, 2, and 7 of the amended petition relate back to Abara’s original timely-filed federal habeas petition because these grounds share “a common core of operative facts” with grounds in Abara’s original petition, and were therefore timely filed. See Mayle v. Felix, 545 U.S. 644, 664, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005); Ha Van Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir.2013).

Abara presented “the legal theory and operative facts” of his arguments in grounds 1, 2, and 7 to the Nevada Supreme Court, so these grounds are exhausted. Davis v. Silva, 511 F.3d 1005, 1011 (9th Cir.2008). The district court erred in dismissing these grounds in Abara’s amended petition. Ground 8 of the amended petition is duplicative of ground 2 in the amended petition, and Abara does not claim that he was prejudiced by the district court’s decision to dismiss the duplicative claim rather than consolidate the grounds for relief. Therefore, the district court did not err in dismissing ground 8.

The district court erred in dismissing ground 9 of the amended petition as con-clusory and unexhausted. Abara sufficiently explained in ground 9 how the jury instructions prejudiced him, and the district court’s contrary conclusion was erroneous. Ground 9 was exhausted because Abara presented “the legal theory and operative facts” of his argument in ground 9 to the Nevada Supreme Court. Davis, 511 F.3d at 1011. AFFIRMED as to ground 8. REVERSED and REMANDED as to grounds 1, 2, 7, and 9. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.