                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 01 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



BOBBY DARRELL COLBERT,                           No. 09-35537

               Petitioner - Appellant,           D.C. No. 2:08-cv-00870-RSL

  v.
                                                 MEMORANDUM *
JIM MCDONALD,

               Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Western District of Washington
                  Robert S. Lasnik, Chief District Judge, Presiding

                              Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       Washington state prisoner Bobby Darrell Colbert appeals pro se from the

district court’s judgment denying 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).
      Colbert contends that the trial court’s denial of his motion to sever the two

unrelated rape charges for trial denied his due process right to a fair trial. We do

not reach the merits of this claim, however, because Colbert failed to exhaust it in

state court. See 28 U.S.C. § 2254(b)(1)(A); see also Hiivala v. Wood, 195 F.3d

1098, 1106-07 (9th Cir.1999); Baldwin v. Reese, 541 U.S. 27, 32 (2004).

      AFFIRMED.




                                           2                                    09-35537
