                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 09 2011

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




                            FOR THE NINTH CIRCUIT



FRANK ALEO,                                      No. 08-15172

               Petitioner - Appellant,           D.C. No. CV-06-01766-GGH

  v.
                                                 MEMORANDUM *
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA; et al.,

               Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    James K. Singleton, District Judge, Presiding

                           Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       California state prisoner Frank Aleo appeals pro se from the district court’s

judgment dismissing without prejudice 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).
      Aleo contends that the district court erred by dismissing his petition for

failure to exhaust because appellees waived the exhaustion requirement of

28 U.S.C. § 2254(b)(1)(A). This contention lacks merit because Aleo has made no

showing that there was an express waiver. See 28 U.S.C. § 2254(b)(3) (“A State

shall not be deemed to have waived the exhaustion requirement or be estopped

from reliance upon the requirement unless the State, through counsel, expressly

waives the requirement.”)

      Aleo also failed to show that any state corrective process is unavailable or

ineffective to protect his rights. See 28 U.S.C. § 2254(b)(1)(B).

      AFFIRMED.




                                          2                                    08-15172
