                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 17 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


STEPHEN C. DEAN,                                 No. 08-16094

             Petitioner - Appellant,             D.C. No. 2:07-cv-01437-SRB

  v.
                                                 MEMORANDUM *
DORA SCHRIRO; et al.,

             Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                    Susan R. Bolton, District Judge, Presiding

                          Submitted February 10, 2010**
                            San Francisco, California

Before: O’SCANNLAIN, TROTT and PAEZ, Circuit Judges.

       Stephen Dean appeals the district court’s denial of his 28 U.S.C. § 2254

petition for habeas corpus relief. We have jurisdiction under 28 U.S.C. § 2253.




        *
             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).
We review de novo the district court’s denial of the petition, Gonzalez v. Brown,

585 F.3d 1202, 1206 (9th Cir. 2009), and we affirm.

      We decline to decide whether a failure to exhaust or a procedural bar

precludes Dean from obtaining federal habeas relief on his prosecutorial

vindictiveness claim and instead deny his petition on the merits. See 28 U.S.C.

§ 2254(b)(2); Lambrix v. Singletary, 520 U.S. 518, 525 (1997); Holley v.

Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009). Dean has presented no “direct

evidence of actual vindictiveness or facts that warrant an appearance of such,” nor

has he offered any evidence “indicating a realistic or reasonable likelihood of

vindictiveness.” Nunes v. Ramirez-Palmer, 485 F.3d 432, 441–42 (9th Cir. 2007)

(internal quotation marks and citation omitted). Indeed, the record shows that the

prosecutor made the plea offer’s expiration date clear over a week before Dean

requested new counsel. This dispels any inference that the prosecution

impermissibly declined to extend the plea deal in order to punish Dean for

exercising his constitutional right to conflict-free counsel. Because Dean’s claim

clearly fails on the merits, we affirm the district court’s denial of his petition for

habeas relief.

      AFFIRMED.




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