Michael Tooley v. Jeffrey Uttecht

MEMORANDUM

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).

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 , 92 S.Ct. 495 , 30 L.Ed.2d 427 (1971), by referring to facts not in the plea agreement during his sentencing hearing. Specifically, he faults the prosecutor for saying that…