Sammy Williams, Petitioner-appellant, v. Robert Borg, Warden, Respondent-appellee, 991 F.2d 804 (9th Cir. 1993)

MEMORANDUM^** 

Sammy Williams, a California state prisoner, appeals pro se the denial of his motion for reconsideration of the district court's dismissal of his 28 U.S.C. § 2254 petition for habeas corpus. The district court dismissed the petition for failure to exhaust state remedies. We have jurisdiction under 28 U.S.C. § 2253. We affirm.

A motion for reconsideration that is not timely under Fed. R. Civ. P. 59(e) may be treated as a motion for relief from the judgment under Fed. R. Civ. P. 60(b). Gould v. Mutual Life Ins. Co. of N.Y., 790 F.2d 769, 772 (9th Cir. 1986), cert. denied, 479 U.S. 987; Rodriguez v. Southern Pac. Transp. Co., 587 F.2d 980, 981 (9th Cir. 1978). A motion made under rule 60(b) may be used to challenge the denial of a habeas corpus petition, and timely appeal may be taken from the denial of the motion. See Browder v. Director, Dep't of Corrections of Ill., 434 U.S. 257, 263, n. 7 (1978). However, the denial of a rule 60(b) motion is reviewed only for an abuse of discretion, and must be affirmed unless the district court erred in ruling that sufficient grounds for setting aside the judgment were not shown. Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989); Browder, 434 U.S. at 263 n. 7; Rodriguez, 587 F.2d at 981.

Williams filed his motion for reconsideration on January 3, 1992, more than ten days after judgment was entered on December 16, 1991. Therefore, we construe his motion as a motion for relief from judgment under Fed. R. Civ. P. 60(b). See Rodriguez, 587 F.2d at 981. Williams filed his notice of appeal on January 22, 1992, more than thirty days after the judgment dismissing his habeas petition was entered. His appeal of the underlying judgment is therefore not timely. See Fed. R. App. P. 4(a). His appeal of the denial of his rule 60(b) motion is timely, however, and we review that denial for an abuse of discretion. See id.; Molloy, 878 F.2d at 315.

The district court dismissed Williams' habeas petition for failure to exhaust state remedies. A petitioner has not satisfied the exhaustion requirement unless he has fairly presented his claims to the highest state court. Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). A claim is fairly presented if the petitioner has described the operative facts and legal theory on which the claim is based. Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986). The district court must dismiss a habeas petition that contains both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 522 (1982).

Williams raised three contentions in his appeal to the California Court of Appeal, and only a single contention in his appeal to the California Supreme Court.¹  That contention alone has been exhausted. See Middleton, 768 F.2d at 1086. The remainder of the claims in Williams' petition for habeas corpus have not been exhausted. Accordingly, the district court did not abuse its discretion by dismissing the petition. See Rose, 455 U.S. at 522.

AFFIRMED.