Ronald Baskett v. Ronald Van Boening , 363 F. App'x 521 ( 2010 )


Menu:
  •                                                                            FILED
    NOT FOR PUBLICATION                            JAN 28 2010
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    RONALD L. BASKETT,                               No. 08-35213
    Petitioner - Appellant,           DC No. CV 07-1020 RSL
    v.
    MEMORANDUM *
    MAGGIE MILLER-STOUT,
    Respondent,
    and
    RONALD VAN BOENING,
    Respondent - Appellee.
    Appeal from the United States District Court
    for the Western District of Washington
    Robert S. Lasnik, District Judge, Presiding
    Submitted January 14, 2010 **
    Seattle, Washington
    Before:        KLEINFELD, TASHIMA, and TALLMAN, Circuit Judges.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    Ronald Baskett appeals the district court’s order denying his petition for a
    writ of habeas corpus. We have jurisdiction pursuant to 
    28 U.S.C. §§ 1291
     and
    2253, and we affirm.
    The district court granted Baskett a Certificate of Appealability (“COA”) for
    its finding that six of the nine claims contained in Baskett’s habeas petition were
    not exhausted. We review the district court’s dismissal for lack of exhaustion de
    novo. Peterson v. Lampert, 
    319 F.3d 1153
    , 1155 (9th Cir. 2003) (en banc).
    Construing the claims raised in Baskett’s pro se petition broadly, see Davis
    v. Silva, 
    511 F.3d 1005
    , 1009-10 (9th Cir. 2008), we conclude that the district court
    erred in finding that Baskett’s first claim was not exhausted. The claim, which
    raised a due process challenge to the revocation of Baskett’s Special Sexual
    Offender Sentencing Alternative sentence, was presented to the Washington
    Supreme Court on direct appeal.
    Although Baskett’s first claim was exhausted, it was also indistinguishable
    from his second claim, which the district court rightfully rejected on the merits.
    Baskett was given the opportunity to confront the evidence against him at his
    revocation hearing and declined to do so, choosing instead to admit the violation
    and take his chances with the court. In these circumstances, his due process rights
    were not violated. Morrissey v. Brewer, 
    408 U.S. 471
    , 488 (1972) (“The parolee
    2
    must have an opportunity to be heard and to show, if he can, that he did not violate
    the conditions, or, if he did, that circumstances in mitigation suggest that the
    violation does not warrant revocation.” (emphasis added)).
    The remainder of the claims covered by the COA were not presented to the
    Washington Supreme Court on direct appeal or through collateral proceedings. In
    particular, the fact that Baskett attached the Washington Court of Appeals’
    decision to his motion for discretionary review in the Washington Supreme Court
    was insufficient to exhaust any claims not raised in the body of his motion for
    discretionary review. Baldwin v. Reese, 
    541 U.S. 27
    , 31-32 (2004). Accordingly,
    the district court did not err when it dismissed Baskett’s claims for lack of
    exhaustion.
    The rest of Baskett’s claims are not colorable. See Mendez v. Knowles, 
    556 F.3d 757
    , 770-71 (9th Cir. 2009) (stating that to expand a COA, the petitioner
    “must demonstrate that the issues are debatable among jurists of reason; that a
    court could resolve the issues [in a different manner]; or that the questions are
    adequate to deserve encouragement to proceed further”). His request to expand the
    COA is therefore denied.
    AFFIRMED.
    3
    

Document Info

Docket Number: 08-35213

Citation Numbers: 363 F. App'x 521

Filed Date: 1/28/2010

Precedential Status: Non-Precedential

Modified Date: 1/12/2023