Sherman Surface, Petitioner-appellant, v. Leroy L. Young, Warden; Attorney General of the State Ofoklahoma, Respondents-appellees, 86 F.3d 1167 (10th Cir. 1996)

Mr. Surface, appearing pro se and in forma pauperis, appeals from the dismissal of his habeas petition, 28 U.S.C. § 2254. He alleges that a variety of constitutional violations undermine his state court conviction. Mr. Surface's petition, however, was properly dismissed by the district court based upon the failure to exhaust state remedies. In order for a state prisoner to present a federal habeas corpus action to a federal district court, he must first demonstrate that he has exhausted his state court remedies. See Anderson v. Harless, 459 U.S. 4, 6 (1982); Olson v. McKune, 9 F.3d 95, 95 (10th Cir. 1993). Our review of the record indicates that claims presented in Mr. Surface's petition were not properly exhausted in state court.

The district court additionally held that Mr. Surface's claim of delay as to his appeal to the Oklahoma Court of Criminal Appeals is moot. Subsequent to the filing of this action, Mr. Surface's state appeal was denied. We need not make a determination regarding this issue, and note that because Mr. Surface's petition contained claims that were not exhausted his petition is at best a mixed petition and thus subject to dismissal. See Rose v. Lundy, 455 U.S. 509, 522 (1982); Harris v. Champion, 48 F.3d 1127, 1133 (10th Cir. 1995) (Harris IV) (petition containing both unexhausted and exhausted claims subject to dismissal as a mixed petition).

AFFIRMED. The mandate shall issue forthwith.