                                                                           FILED
                             NOT FOR PUBLICATION                            APR 19 2010

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




                             FOR THE NINTH CIRCUIT



ANTHONY LOUIS PELLEGRINI,                        No. 07-17028

               Petitioner - Appellant,           D.C. No. CV-05-00506-CKJ

  v.
                                                 MEMORANDUM *
IVAN BARTOS; TERRY GODDARD;
BARBARA LAWALL,

               Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Cindy K. Jorgenson, District Judge, Presiding

                              Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.




          *
             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).
        Arizona state prisoner Anthony Louis Pellegrini appeals pro se from the

district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have

jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

        Pellegrini contends the district court erred by concluding that he failed to

exhaust a claim that counsel was ineffective for failing to adequately investigate,

prepare, and cross-examine an important state witness. Our review of the record

indicates the district court correctly concluded that Pellegrini did not exhaust this

claim, and that it is now procedurally defaulted. See Baldwin v. Reese, 541 U.S.

27, 32 (2004); see also Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir.

2002). Pellegrini has failed to establish cause and prejudice to excuse the default,

or that the failure to consider the claim will result in a fundamental miscarriage of

justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Franklin, 290 F.3d at

1231.

        Pellegrini raises additional uncertified claims of ineffective assistance of

counsel, which we construe as a motion to expand the certificate of appealability.

So construed, the motion is denied because he has not made “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

        AFFIRMED.




                                            2                                     07-17028
