                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 10 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

MICHAEL BRIAN TOOLEY,                            No. 12-35722

              Petitioner - Appellant,            D.C. No. 2:10-cv-00936-TSZ

  v.
                                                 MEMORANDUM*
JEFFREY A. UTTECHT, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                 Thomas S. Zilly, Senior District Judge, Presiding

                              Submitted July 7, 2014**
                                Seattle, Washington

Before: KLEINFELD, TASHIMA, and MURGUIA, Circuit Judges.


       Michael Tooley appeals the district court’s dismissal of his habeas petition

without prejudice for failure to prosecute. We have jurisdiction under 28 U.S.C. §§

1291, 2253. See Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984).

        *
             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).
       Tooley argues that the district court abused its discretion by dismissing for

failure to prosecute. The State of Washington agrees that this was an abuse of

discretion but urges us to reach the merits of Tooley’s petition. “We review a

district court’s dismissal of a habeas corpus petition de novo and may affirm on

any ground supported by the record, even if it differs from the rationale of the

district court.” Pollard v. White, 119 F.3d 1430, 1433 (9th Cir. 1997). Assuming

without deciding that the district court erred by dismissing for failure to prosecute,

we nonetheless affirm the district court because we conclude that Tooley’s petition

is meritless.



       Tooley contends that the prosecutor breached the plea agreement in violation

of Santobello v. New York, 404 U.S. 257 (1971), by referring to facts not in the

plea agreement during his sentencing hearing. Specifically, he faults the prosecutor

for saying that Tooley had “robbed” a store clerk at gun point after committing the

murder to which he pleaded guilty. Although the prosecutor was regrettably

imprecise in using the word “robbed,” the context was of the prosecutor arguing

that no one was threatening Tooley when, as Tooley stipulated, he stole a lighter

and threatened a clerk with a gun. The Washington Court of Appeals reasonably

concluded that the prosecutor’s reference “to the QFC shop lift and use of a gun to


                                          2
threaten the QFC clerk was within the stipulated real facts” and did not undercut

the plea agreement.



      In reviewing a federal habeas petition, “state court findings of fact are

presumed correct unless rebutted by clear and convincing evidence or unless based

on an unreasonable evidentiary foundation.” Gonzalez v. Pliler, 341 F.3d 897, 903

(9th Cir. 2003). Here, the record supports the Washington Court of Appeals’

determination. In the plea agreement, the parties “stipulated that the following are

real and material facts for purposes of this sentencing: The facts set forth in the

certification(s) for determination of probable cause and prosecutor’s summary.”

The prosecutor’s summary states that “[a]fter the homicide, the defendant stole a

lighter and threatened the [store] clerk with a gun.”



      Thus, Tooley had stipulated that those facts were “real and material facts for

the purposes of . . . sentencing.” The Washington Court of Appeals’ determination

that the prosecutor was referring to those stipulated facts, rather than to a

“robbe[ry]” offense to which Tooley had not admitted, was neither contrary to, nor

involved an unreasonable application of Santobello v. New York. See 28 U.S.C. §

2254(d).


                                           3
Affirmed.




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