Davis v. Lambert

44 F. App'x 797

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 15, 2002
• Docket: No. 01-35291; D.C. No. CV-00-05069-FVS
• Status: Published

Opinion

MEMORANDUM

**

Leslie Grey Davis, a Washington State prisoner, appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 petition for failing to exhaust his available state court remedies.¹ We have jurisdiction pursuant to 28 U.S.C. §. 2253. We review de novo the denial of a section 2254 petition, Forrest v. Vasquez, 75 F.3d 562, 563 (9th Cir.1996), and we affirm.

Davis contends that the Washington Supreme Court’s denial without comment of his petition for review was a ruling on the merits, demonstrating he has exhausted his available state remedies. Having reviewed the record, we agree with the district court that circumstances indicate Davis’ petition was denied on procedural grounds for failing to fairly present the issues for review and answer to the Washington Supreme Court, in accordance with Washington’s Rules of Appellate Procedure. See Kibler v. Walters, 220 F.3d 1151, 1153 (9th Cir.2000) (as amended), cert, denied, 531 U.S. 1086, 121 S.Ct. 795, 148 L.Ed.2d 689 (2001). As a result, Davis has not provided the Washington Supreme Court an opportunity to address his claims, and accordingly has failed to exhaust his state remedies. See Forrest, 75 F.3d at 564.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

1 . Because we denied Davis' April 2, 2001 motion to expand his certificate of appealability ("COA”), we decline to address Davis' claims that fall outside the scope of the original COA issued by the district court on March 13, 2001. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam).