Hagos G. Amlak, Petitioner-appellant, v. Daniel B. Vasquez, Respondent-appellee, 952 F.2d 1399 (9th Cir. 1992)

MEMORANDUM^** 

Hagos G. Amlak, a California state prisoner, appeals pro se from the district court's sua sponte dismissal before service of process of his 28 U.S.C. § 2254 habeas corpus petition for failure to exhaust state remedies. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we vacate and remand for service of process.

In Amlak's petition, he alleged that he exhausted state court remedies. He also filed copies of the California Supreme Court's (1) denial of his "motion for instant retrial" and petition for habeas corpus with a citation to In re Swain, 34 Cal. 2d 300, 304 (1949) and (2) summary denials of his habeas petition and petition for review. He did not file documents showing which claims were raised in his state habeas petitions or on direct appeal. The district court dismissed the petition, holding that the California Supreme Court's denials did not "demonstrate that petitioner has exhausted his state remedies on the claims presented in this petition."

This court has held that a petitioner has the burden of alleging exhaustion in his habeas petition. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981), cert. denied, 455 U.S. 1023 (1982). Nevertheless, exhaustion is a defense that may be waived in some circumstances by the government. See Granberry v. Greer, 481 U.S. 129, 134-36 (1987). Moreover, when the state answers a habeas petition, it has a duty to advise the district court whether the petitioner has exhausted all available state remedies. Id. at 134; see also Rule 5, Rules Governing Section 2254 Petitions, 28 U.S.C. foll. § 2254.

Here, Amlak filed documents in the district court alleging that he had exhausted his state remedies as to all claims. Although a district court may dismiss a habeas petition without serving it if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief," see Rule 4, Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254, it is not clear from the face of Amlak's petition and exhibits that he is not entitled to relief.¹  He has alleged exhaustion of state remedies, and he is entitled to have his petition served and a response from the government. See id.

VACATED and REMANDED for issuance and service of process.