Unpublished Disposition, 867 F.2d 612 (9th Cir. 1989)

MEMORANDUM^** 

Kerry Van Bell appeals the district court's dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We affirm the decision of the district court.

We review the denial of a section 2254 habeas petition de novo. Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987). Bell contends that he was illegally convicted of attempted sexual assault. The district court dismissed Bell's petition for failure to exhaust available state remedies.

As a matter of comity, a federal court normally will not consider a habeas petition unless the petitioner has exhausted available state judicial remedies on every ground presented in the petition. See 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 518-22 (1982). "If a petitioner presents his claim to the highest state court and that court disposes of the claim on the merits, the exhaustion requirement has been satisfied." Hayes v. Kincheloe, 784 F.2d 1434, 1437 (9th Cir. 1986). The burden is on the petitioner to show exhaustion, and dismissal of the petition is proper where the record does not show that the exhaustion requirement has been met. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1982) (per curiam).

Bell filed his federal habeas petition after his conviction, but prior to seeking any post-conviction relief in the Nevada courts, including direct appeal. Bell contends that exhausting his state court remedies would be futile because the Nevada Supreme Court has already denied the claim that he presents in his federal habeas petition. This contention is meritless. Bell alleges that on the eve of trial his court-appointed counsel filed a petition for a writ of prohibition in the Nevada Supreme Court attacking the indictment. It is clear, however, that the Nevada Supreme Court ruled only that its intervention at that stage of the proceedings by way of extraordinary writ was unwarranted. Bell has not yet asked the Nevada Supreme Court to review his conviction.

Therefore, the district court correctly determined that Bell's petition should be dismissed for failure to exhaust state remedies. Indeed, Bell indicates in his reply brief that he has pursued a post-conviction remedy in the Nevada courts since filing his federal habeas petition.¹ 

AFFIRMED.