Colin Jenkins, Plaintiff-appellant, v. State of Utah, Defendant-appellee, 972 F.2d 356 (10th Cir. 1992)

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Mr. Jenkins, a former Utah State inmate, appeals the dismissal of his pro se petition seeking habeas corpus relief.

Mr. Jenkins was convicted in December 1991 of disposing of stolen property. He was sentenced to thirty days in jail and placed on probation for three years. In his petition he stated his appeal to the Utah Court of Appeals was "pending." In his petition Mr. Jenkins complains of " [i]llegal search & seizure or unlawful arrest predicated on [hearsay] evidence."

The district court dismissed Mr. Jenkins' petition for habeas corpus relief holding that as Mr. Jenkins had a state appeal pending he had failed to exhaust his state remedies as required by 28 U.S.C. § 2254.

Mr. Jenkins in his pro se appeal to this court asserts, for the first time, in a conclusory fashion, the Utah higher state courts refuse to act. He then proceeds to argue the merits of his case.

It is fundamental that a federal court may not act unless and until the state court has been given an opportunity to address the petitioner's grievances. Mr. Jenkins has failed to make this showing. It is also fundamental law that an appellate court may not address an issue unless it was first raised in the trial court. Mr. Jenkins fails to make this showing.

The judgment of the district court is AFFIRMED.