                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 08 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KENNETH WHEATON,                                 No.   16-35554

              Petitioner-Appellant,              D.C. No. 2:15-cv-00518-JCC

 v.
                                                 MEMORANDUM*
PATRICK GLEBE,

              Respondent-Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                          Submitted December 6, 2017**
                              Seattle, Washington

Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges.

      Kenneth Wheaton appeals the denial of his 28 U.S.C. § 2254 habeas corpus

petition challenging his conviction for two counts of second-degree rape and one




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
count of felony harassment. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253, and we affirm.

      1. It was not objectively unreasonable or contrary to clearly established law

for the state court to conclude that Wheaton’s right to a public trial was not

violated given the absence of any evidence that (1) the trial judge ordered the

courtroom closed or (2) the public was wholly excluded due to space limitations.

United States v. Withers, 638 F.3d 1055, 1063 (9th Cir. 2011).

      2. Wheaton’s ineffective assistance of counsel claim is procedurally

defaulted because he did not fairly present it to the Washington Supreme Court.

Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011). Wheaton also failed to raise

the claim in his federal habeas petition until his reply brief. See Cacoperdo v.

Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).

      AFFIRMED.




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