Kenneth Wheaton v. Patrick Glebe

FILED
NOT FOR PUBLICATION
DEC 08 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH WHEATON, No. 16-35554
Petitioner-Appellant, D.C. No. 2:15-cv-00518-JCC
v.
MEMORANDUM*
PATRICK GLEBE,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted December 6, 2017**
Seattle, Washington
Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges.
Kenneth Wheaton appeals the denial of his 28 U.S.C. § 2254 habeas corpus
petition challenging his conviction for two counts of second-degree rape and one
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
count of felony harassment. We have jurisdiction under 28 U.S.C. §§ 1291 and
2253, and we affirm.
1. It was not objectively unreasonable or contrary to clearly established law
for the state court to conclude that Wheaton’s right to a public trial was not
violated given the absence of any evidence that (1) the trial judge ordered the
courtroom closed or (2) the public was wholly excluded due to space limitations.
United States v. Withers, 638 F.3d 1055, 1063 (9th Cir. 2011).
2. Wheaton’s ineffective assistance of counsel claim is procedurally
defaulted because he did not fairly present it to the Washington Supreme Court.
Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011). Wheaton also failed to raise
the claim in his federal habeas petition until his reply brief. See Cacoperdo v.
Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).
AFFIRMED.
2