Viktor I. Natekin v. EARL HOUSER, Superintendent, Goose Creek Correctional Center

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIKTOR I. NATEKIN,
Petitioner-Appellant,
v.
EARL HOUSER, Superintendent, Goose
Creek Correctional Center,
Respondent-Appellee.
No. 21-35658
D.C. No. 3:21-cv-00030-JKS
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
James K. Singleton, District Judge, Presiding
Submitted December 6, 2022 **
Seattle, Washington
Before: McKEOWN, MILLER, and MENDOZA, Circuit Judges.
Viktor Natekin, an Alaska state prisoner, appeals the district court’s denial
of his habeas corpus petition brought under 28 U.S.C. § 2254. We have jurisdiction
under 28 U.S.C. § 2253 and affirm the district court’s denial of the petition.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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In his section 2254 petition, Natekin raised a single ineffective assistance of
counsel claim. The district court denied relief because it found that Natekin’s claim
was procedurally defaulted for failure to exhaust state court remedies. We review
the district court’s denial of habeas relief de novo. Demetrulias v. Davis, 14 F.4th
898, 905 (9th Cir. 2021).
Before a state prisoner may assert a federal habeas claim, he must “exhaust[]
the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). “A
petitioner satisfies the exhaustion requirement by fully and fairly presenting each
claim to the highest state court.” Scott v. Schriro, 567 F.3d 573, 582 (9th Cir.
2009). In O’Sullivan v. Boerckel, the Supreme Court held that “state prisoners must
give the state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established appellate review process.”
526 U.S. 838, 845 (1999). To meet the exhaustion requirement, state prisoners
must “file petitions for discretionary review when that review is part of the
ordinary appellate review procedure in the State.” Id. at 847.
There is no dispute that Natekin did not present his ineffective assistance of
counsel claim to the Alaska Supreme Court. Natekin seeks to skirt this deficiency
by arguing that review of his claim was unavailable under Alaska Rule of
Appellate Procedure 304 because ineffective assistance of counsel claims are not
within the non-controlling “character of reasons” the court will consider for

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discretionary review. This argument is long foreclosed by O’Sullivan. See 526 U.S.
at 845–48. Natekin failed to file a petition in the Alaska Supreme Court for
discretionary review of his ineffective assistance of counsel claim, thereby failing
to his exhaust his state court remedies and procedurally defaulting the claim.
Accordingly, we affirm the district court’s denial of Natekin’s habeas petition
without reaching the merits of Natekin’s claim.
AFFIRMED.

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