Unpublished Disposition, 902 F.2d 1579 (9th Cir. 1990)

MEMORANDUM^** 

Robert Merry petitioned the district court for habeas corpus relief under 28 U.S.C. § 2254, alleging that the Alaska state courts violated his rights to due process under the law and his right to be free from double jeopardy. The district court dismissed Merry's petition as to his due process claim, ruling that Merry had not exhausted the claim in the Alaska courts. The district court then denied Merry's double jeopardy claim which had been exhausted. For the reasons stated below, we remand to the district court to dismiss Merry's petition in its entirety.

On appeal, Merry argues the merits of his double jeopardy claim. The state responds that the mix of exhausted and unexhausted claims in Merry's petition bars the district court from considering the double jeopardy claim on the merits under the rule of Rose v. Lundy, 455 U.S. 509 (1982).¹ 

The district court's decision to grant or deny a petition for habeas corpus is reviewed de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989); Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).

The United States Supreme Court has expressly addressed the issue of whether the exhaustion rule in 28 U.S.C. § 2254(b)-(c) requires a federal district court to dismiss a petition for habeas corpus if it contains any claims not exhausted in the state courts.²  The Court held that "a district court must dismiss such 'mixed petitions,' leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." Rose v. Lundy, 455 U.S. 509, 510 (1982).

We have applied the law as stated in Rose v. Lundy to facts similar to those of the case at bar. Guizar v. Estelle, 843 F.2d 371 (9th Cir. 1988). In Guizar, the habeas petitioner alleged two grounds for his petition but failed to raise one of his claims in the state courts. "Noting Guizar's failure to exhaust state remedies on the [one] claim, the district court declined to consider that claim, but then proceeded to rule on the remainder of Guizar's claims on the merits." Guizar, 843 F.2d at 372 (citation omitted). We held that since Rose v. Lundy requires dismissal of entire habeas corpus petitions without reaching the merits of any of its claims when the petition combines exhausted and unexhausted claims, "the district court should not have considered the merits of any of Guizar's claims." Id.

We then discussed how best to remedy this error:

[W]e follow the principles set forth in Rose v. Lundy. In that case, the Supreme Court held that prisoners who submit mixed petitions should have the option of either resubmitting their petitions with only exhausted claims, or exhausting the remainder of their claims in state court and then filing new petitions. 455 U.S. at 520.... In order to give Guizar the benefit of that choice, we remand to the district court with instructions to dismiss Guizar's petition nunc pro tunc and without prejudice. Guizar may then seek to present his [unexhausted] claim in state court; or, he may resubmit his petition with only the exhausted claims. If he chooses the latter alternative, the district court may accept it nunc pro tunc and reinstate its opinion.

Guizar, 843 F.2d at 372.

A similar analysis may be applied to petitioner Merry's case. Following Guizar, we remand to the district court with instructions to dismiss Merry's petition without prejudice. At that point, Merry has the option to resubmit his petition with only the exhausted double jeopardy claims or to exhaust his due process claims in state court and file a new habeas petition.

REMANDED with instructions to dismiss.