Mitcham v. Stewart

103 F. App'x 643

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 26, 2004
• Docket: No. 03-15672
• Status: Published

Opinion

MEMORANDUM

**

Mark L. Mitcham, an Arizona state prisoner, appeals the district court’s denial of his habeas corpus petition, which challenges his conviction and sentence for child molestation and sexual conduct with a minor. See 28 U.S.C. § 2254. We affirm.

Mitcham contends that his rights under the Fourteenth Amendment to the United States Constitution were violated because a witness’ testimony amounted to prosecutorial misconduct that denied him due process. See Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986); Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); Drayden v. White, 232 F.3d 704, 713 (9th Cir.2000).

However, Mitcham procedurally defaulted on that claim because he never exhausted his due process argument before the Arizona Court of Appeals, as he was required to do. See 28 U.S.C. § 2254(b)(1); Baldwin v. Reese, — U.S.-,-, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir.1999). While Mitcham did present the state court with the facts underlying his federal due process claim, his filings before that tribunal failed to indicate that he was seeking relief under the specific federal constitutional guarantee he now asserts before us. That is fatal. We are unable to consider his claim. See Baldwin, — U.S. at-, 124 S.Ct. at 1351; Castillo v. McFadden, 370 F.3d 882, 886-87 (9th Cir.2004); Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir.2003); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999).

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 Ninth Circuit Rule 36-3.