Hashibo Lacy v. Mark Nooth

FILED
NOT FOR PUBLICATION JUL 01 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HASHIBO DEWITT LACY, No. 10-36031
Petitioner - Appellant, D.C. No. 6:08-cv-01300-AA
v.
MEMORANDUM*
MARK NOOTH,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted June 9, 2011
Portland, Oregon
Before: FISHER, GOULD, and PAEZ, Circuit Judges.
Petitioner Hashibo Lacy appeals from the district court’s judgment denying
his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We have jurisdiction
under 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Lacy claims that the Oregon courts unreasonably applied Jackson v.
Virginia, 443 U.S. 307, 318–19 (1979), contending that his conviction was not
supported by sufficient evidence. But Lacy has not shown that “the state court’s
ruling on [his] claim . . . was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).
There is at least “a reasonable argument,” id. at 788, that Lacy’s conviction
satisfies the Jackson standard. The Oregon courts reasonably could have
determined that there was sufficient evidence that Lacy “use[d] or threaten[ed] the
immediate use of physical force” against Killam with the requisite intent. Or. Rev.
Stat. § 164.395.
Because Lacy’s habeas petition does not raise a colorable federal claim, we
need not reach the question of whether Lacy exhausted his state remedies. See 28
U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on
the merits, notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State.”); Cassett v. Stewart, 406 F.3d 614, 624 (9th
Cir. 2005) (holding that a federal court may deny an unexhausted habeas petition
on the merits “when it is perfectly clear that the applicant does not raise even a
colorable federal claim”).
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AFFIRMED.
3