                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 15 2010

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




                            FOR THE NINTH CIRCUIT



GREGORY W. O’NEAL,                               No. 09-35706

              Petitioner - Appellant,            D.C. No. 3:08-cv-05454-FDB

  v.
                                                 MEMORANDUM *
WARDEN MCDONALD,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Western District of Washington
                Franklin D. Burgess, Senior District Judge, Presiding

                        Argued and Submitted July 12, 2010
                               Seattle, Washington

Before: RYMER and N.R. SMITH, Circuit Judges, and WALTER, Senior District
Judge.**

       Gregory O’Neal appeals the district court’s denial of his habeas petition,

arguing that there was insufficient evidence to support the jury’s finding that




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
O’Neal was “armed” at the time of several underlying drug manufacturing crimes,

for which he was convicted.

      As an initial matter, we grant O’Neal’s and Appellee’s Requests for Judicial

Notice.

       Without deciding whether O’Neal properly exhausted his federal claim in

state court, we deny O’Neal’s petition on the merits.

      Under Washington law, “[a] defendant is ‘armed’ when he or she is within

proximity of an easily and readily available deadly weapon for offensive or

defensive purposes and when a nexus is established between the defendant, the

weapon, and the crime.” State v. O’Neal, 150 P.3d 1121, 1123 (Wash. 2007)

(internal quotations and citation omitted). There was sufficient evidence to support

a finding that O’Neal was “armed” under Washington law at the time of his

underlying offenses. The jury was presented with evidence that loaded firearms

were kept in readily accessible spots during the time that O’Neal was engaged in

the drug manufacturing operations.

      AFFIRMED.




                                     Page 2 of 2
