Gregory O'Neal v. Warden McDonald

FILED
NOT FOR PUBLICATION JUL 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GREGORY W. O’NEAL, No. 09-35706
Petitioner - Appellant, D.C. No. 3:08-cv-05454-FDB
v.
MEMORANDUM *
WARDEN MCDONALD,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, Senior District Judge, Presiding
Argued and Submitted July 12, 2010
Seattle, Washington
Before: RYMER and N.R. SMITH, Circuit Judges, and WALTER, Senior District
Judge.**
Gregory O’Neal appeals the district court’s denial of his habeas petition,
arguing that there was insufficient evidence to support the jury’s finding that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
O’Neal was “armed” at the time of several underlying drug manufacturing crimes,
for which he was convicted.
As an initial matter, we grant O’Neal’s and Appellee’s Requests for Judicial
Notice.
Without deciding whether O’Neal properly exhausted his federal claim in
state court, we deny O’Neal’s petition on the merits.
Under Washington law, “[a] defendant is ‘armed’ when he or she is within
proximity of an easily and readily available deadly weapon for offensive or
defensive purposes and when a nexus is established between the defendant, the
weapon, and the crime.” State v. O’Neal, 150 P.3d 1121, 1123 (Wash. 2007)
(internal quotations and citation omitted). There was sufficient evidence to support
a finding that O’Neal was “armed” under Washington law at the time of his
underlying offenses. The jury was presented with evidence that loaded firearms
were kept in readily accessible spots during the time that O’Neal was engaged in
the drug manufacturing operations.
AFFIRMED.
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