Egelhoff v. Mahoney , 249 F. App'x 643 ( 2007 )

MEMORANDUM ^**

Montana state prisoner James A. Egel-hoff appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Egelhoff contends that the Montana Supreme Court violated his due process rights by failing to decide on direct appeal whether sufficient evidence supported his conviction for the deliberate homicide of Roberta Pavola. Although Egelhoff failed to exhaust this claim in state court, “a federal court may deny an unexhausted petition on the merits ... when it is perfectly clear that the applicant does not raise even a colorable federal claim.” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir.2005).

We conclude that Egelhoff fails to raise a colorable due process claim because he cannot demonstrate prejudice. See United States v. Tucker, 8 F.3d 673, 676 (9th Cir.1993) (en banc) (due process claim requires showing of prejudice). In particular, Egelhoffs claim on direct appeal that there was insufficient evidence to support his conviction for the deliberate homicide of Roberta Pavola lacks merit because, viewing the facts in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

To the extent that Egelhoffs brief raises uncertified issues, we construe his arguments as a motion to expand the certificate of appealability, and we deny the motion. See 9th Cir. R. 22-l(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.