FILED
NOT FOR PUBLICATION MAR 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GARY D. EASLEY, No. 08-16406
Petitioner - Appellant, D.C. No. 2:07-CV-00629-WBS
v.
MEMORANDUM *
STATE OF CALIFORNIA; ATTORNEY
GENERAL OF THE STATE OF
CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted March 8, 2011 **
Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.
Gary D. Easley appeals pro se from the district court’s judgment dismissing
his habeas corpus 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).
The government contends that dismissal of Easley’s petition was proper in
light of the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971).
We agree. As a threshold matter, the government’s failure to raise the Younger
argument in the district court does not prevent us from addressing it on appeal. See
H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000) (“Younger
abstention may be raised sua sponte at any point in the appellate process.”). In
light of the ongoing state criminal proceedings at the time Easley filed his federal
habeas petition, dismissal was appropriate under Younger. See Younger, 401 U.S.
at 43-44 (holding that on principles of federalism and comity, federal courts should
abstain from intervening in ongoing state criminal proceedings absent
extraordinary circumstances).
AFFIRMED.
2 08-16406