FILED
NOT FOR PUBLICATION MAR 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FRANK ALEO, No. 08-15172
Petitioner - Appellant, D.C. No. CV-06-01766-GGH
v.
MEMORANDUM *
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA; et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
California state prisoner Frank Aleo appeals pro se from the district court’s
judgment dismissing without prejudice his 28 U.S.C. § 2254 habeas petition. 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 9th 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).
Aleo contends that the district court erred by dismissing his petition for
failure to exhaust because appellees waived the exhaustion requirement of
28 U.S.C. § 2254(b)(1)(A). This contention lacks merit because Aleo has made no
showing that there was an express waiver. See 28 U.S.C. § 2254(b)(3) (“A State
shall not be deemed to have waived the exhaustion requirement or be estopped
from reliance upon the requirement unless the State, through counsel, expressly
waives the requirement.”)
Aleo also failed to show that any state corrective process is unavailable or
ineffective to protect his rights. See 28 U.S.C. § 2254(b)(1)(B).
AFFIRMED.
2 08-15172