Unpublished Disposition, 884 F.2d 582 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 884 F.2d 582 (9th Cir. 1989)

Marvin MILLER, Petitioner-Appellant,v.James ROWLAND, Director, California Department ofCorrections, Respondent-Appellee.

No. 89-55015.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 8, 1989.* Decided Aug. 28, 1989.

Before JAMES R. BROWNING, FARRIS and CANBY, Circuit Judges.


MEMORANDUM** 

Since the transcript of the plea bargaining negotiations clearly indicates that the parties' informal verbal agreement not to include the transcript in the record was not part of the plea agreement itself, the district court's finding that the government did not violate the plea agreement by placing the transcript in the record was not clearly erroneous. See United States v. Helmandollar, 852 F.2d 498, 501 (9th Cir. 1988). Appellant himself made reference to the plea agreement in his brief to the state appellate court.

Because Miller had ample opportunity to bring out any inconsistencies in the testimony of Haigh and Bobo through direct and cross examination, the alleged misconduct by the government in using conflicting testimony did not deny Miller a fair trial. Cf. United States v. Wolf, 813 F.2d 970, 976-77 (9th Cir. 1987).

Because Miller failed to show he had exhausted state remedies, the district court's refusal to consider three issues raised for the first time in Miller's petition for reconsideration of the denial of his writ of habeas corpus was within the district court's discretion. See Powell v. Spalding, 679 F.2d 163, 165-66 (9th Cir. 1982) (within district court's discretion to refuse amendment adding unexhausted claims).

The district court is AFFIRMED.

 *

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3