Michael Brian Tooley v. JEFFREY A. UTTECHT, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL BRIAN TOOLEY,
Petitioner - Appellant,
v.
JEFFREY A. UTTECHT, Warden,
Respondent - Appellee.
No. 12-35722
D.C. No. 2:10-cv-00936-TSZ
MEMORANDUM*
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).
FILED
JUL 10 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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
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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).
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Affirmed.
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