Stephen C. Dean v. Dora Schriro;

* 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN C. DEAN,
Petitioner - Appellant,
v.
DORA SCHRIRO; et al.,
Respondents - Appellees.
No. 08-16094
D.C. No. 2:07-cv-01437-SRB
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted February 10, 2010 **
San Francisco, California
Before: O’SCANNLAIN, TROTT and PAEZ, Circuit Judges.
Stephen Dean appeals the district court’s denial of his 28 U.S.C. § 2254
petition for habeas corpus relief. We have jurisdiction under 28 U.S.C. § 2253.
FILED
MAR 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
We review de novo the district court’s denial of the petition, Gonzalez v. Brown,
585 F.3d 1202, 1206 (9th Cir. 2009), and we affirm.
We decline to decide whether a failure to exhaust or a procedural bar
precludes Dean from obtaining federal habeas relief on his prosecutorial
vindictiveness claim and instead deny his petition on the merits. See 28 U.S.C.
§ 2254(b)(2); Lambrix v. Singletary, 520 U.S. 518, 525 (1997); Holley v.
Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009). Dean has presented no “direct
evidence of actual vindictiveness or facts that warrant an appearance of such,” nor
has he offered any evidence “indicating a realistic or reasonable likelihood of
vindictiveness.” Nunes v. Ramirez-Palmer, 485 F.3d 432, 441–42 (9th Cir. 2007)
(internal quotation marks and citation omitted). Indeed, the record shows that the
prosecutor made the plea offer’s expiration date clear over a week before Dean
requested new counsel. This dispels any inference that the prosecution
impermissibly declined to extend the plea deal in order to punish Dean for
exercising his constitutional right to conflict-free counsel. Because Dean’s claim
clearly fails on the merits, we affirm the district court’s denial of his petition for
habeas relief.
AFFIRMED.

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