                                                                           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                            NOT FOR PUBLICATION                             MAR 29 2011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
