                                                                              FILED
                              NOT FOR PUBLICATION                             JUN 21 2013

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




                              FOR THE NINTH CIRCUIT



ANDRÉ RHODES,                                      No. 11-16573

                 Petitioner - Appellant,           D.C. No. 2:10-cv-01444-GGH

  v.
                                                   MEMORANDUM *
MIKE McDONALD, Warden,

                 Respondent - Appellee.



                     Appeal from the United States District Court
                         for the Eastern District of California
                   Gregory G. Hollows, Magistrate Judge, Presiding **

                               Submitted June 18, 2013 ***

Before:         TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

       Former California state prisoner André Rhodes appeals pro se from the

district court’s judgment dismissing his 28 U.S.C. § 2254 petition for failure to

exhaust. 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 parties consented to proceed before a magistrate judge.
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Rhodes contends that he submitted documentation to the district court

establishing exhaustion of his state remedies. We review de novo the dismissal of

a 28 U.S.C. § 2254 habeas petition for failure to exhaust. See Rhoades v. Henry,

638 F.3d 1027, 1034 (9th Cir. 2011).

      The district court correctly determined that Claims 2a, 3, and 4 have never

been presented to the California Supreme Court and are, accordingly, unexhausted.

See 28 U.S.C. § 2254(b)(1)(A); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th

Cir. 2003) (en banc). Claims 1 and 2b were raised in a pro se petition to the

California Supreme Court, which denied the petition with a citation to In re Swain,

34 Cal. 2d. 300, 304 (1949). Our independent review of the record makes clear

that these claims were not alleged with sufficient particularity to satisfy the

requirement of fair presentation to the state’s high court. See Kim v. Villalobos,

799 F.2d 1317, 1319-20 (9th Cir. 1986). Accordingly, the district court properly

dismissed the petition as unexhausted.

      We construe Rhodes’s additional arguments as a motion to expand the

certificate of appealability. So construed, the motion is denied. See 9th Cir. R.

22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).

All other pending motions are denied.

      AFFIRMED.


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