Ashby v. Payne

155 F. App'x 366

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 12, 2005
• Docket: No. 02-35865
• Status: Published

Opinion

MEMORANDUM

**

Michael E. Ashby appeals pro se the district court’s judgment dismissing without prejudice his 28 U.S.C. § 2254 petition for failure to exhaust. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Ashby contends that the district court erred by dismissing his 28 U.S.C. §2254 petition without prejudice based on its belief that the petition contained only unexhausted claims. We agree with Ashby that his petition contained claims that were exhausted. See In Re Matteson, 142 Wash.2d 298 (Wash. 2000). However, we affirm the dismissal because Ashby’s claims are foreclosed by out decision in White v. Lambert, 370 F.3d 1002 (9th Cir. 2004).

The motion to proceed in forma pauperis is granted. The Clerk shall amend the docket to reflect this status.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.