                                                                           FILED
                           NOT FOR PUBLICATION                              APR 29 2010

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




                            FOR THE NINTH CIRCUIT



JOHN MACMULLIN,                                  No. 09-15652

             Appellant,                          D.C. No. 2:08-cv-00768-FJM

  v.
                                                 MEMORANDUM *
WILLIAM G. POACH, Jr.; LYNN M.
ANDERSON; DONALD CHILDERS;
PETER M. WILLIAMS; MARION
HUBBARD; PATRICIA A. OROZCO
Judge; DIANE M. JOHNSEN; G.
MURRAY SNOW, Judge; LINDSAY
ELLIS, Commissioner; MICHAEL D.
HINTZE, Commissioner,

             Appellees,

 and

RUSSELL BROWN,

             Trustee.



                    Appeal from the United States District Court
                             for the District of Arizona
                   Frederick J. Martone, District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Submitted April 13, 2010 **
                              San Francisco, California

Before: KLEINFELD, TASHIMA and THOMAS, Circuit Judges.

      John MacMullin appeals from the district court’s affirmance of the

bankruptcy court’s order modifying the automatic stay to permit the probate of

Sylvia Levering’s Estate to continue and referring all questions relating to the

merits of attorney’s fees and costs awarded during probate proceedings to the

probate court.

      After reviewing the record and the briefs, we affirm for the reasons given by

the district court in its decision. As explained in Marshall v. Marshall, 547 U.S.

293 (2006), the probate exception to bankruptcy jurisdiction applies to claims

against the res in the custody of the state court and to matters internal to the

probate of the will.

      We construe MacMullin’s “motion re: record” as a request for judicial notice

of records that were not before the bankruptcy court and deny.

      AFFIRMED; MOTION DENIED.




        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
