Unpublished Disposition, 867 F.2d 612 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 612 (9th Cir. 1989)

Raymond L. CLEVIDENCE, Petitioner-Appellant,v.James R. UPCHURCH, Warden, et al., Respondent-Appellee.

No. 87-2972.

United States Court of Appeals, Ninth Circuit.

Submitted*  Jan. 26, 1989.Decided Jan. 30, 1989.

Before HUG, SCHROEDER and LEAVY, Circuit Judges.


MEMORANDUM** 

Raymond L. Clevidence, an Arizona state prisoner, appeals pro se the district court's dismissal without prejudice of his petition for a writ of habeas corpus for failure to exhaust state remedies. This court reviews de novo a district court's dismissal of a habeas corpus petition. Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). We reverse and remand.

The federal court ordinarily may not consider the merits of a habeas corpus petition unless the petitioner has exhausted all available state remedies as to every claim. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 510 (1982). Where a petition contains both exhausted and unexhausted claims, it is proper for the district court to dismiss the petition, leaving the petitioner with the option of returning to state court to exhaust his claims or of amending or resubmitting the petition to present only exhausted claims to the district court. Rose, 455 U.S. at 510.

We find Clevidence's petition ambiguous as to exhaustion. He raised three grounds for relief in the petition: (1) the search and seizure of evidence from his wallet was an illegal search without consent, (2) the search for weapons did not justify intrusion into a piece of paper and (3) the trial court erred in finding Clevidence guilty of misconduct involving weapons. In response to question 11 on the petition, Clevidence indicated that he had filed a petition for review in the Arizona Supreme Court, in which he raised all of the three grounds for relief which he now raises in his habeas corpus petition. However, in response to question 12(A), he indicated that he did not present the first of the three issues to the Arizona Supreme Court. These conflicting answers leave uncertain the issue of whether Clevidence exhausted state remedies as to every claim.

We therefore remand to the district court for clarification. The district court is instructed to order the state to answer Clevidence's petition and to supplement the record to establish whether state remedies were exhausted as to every claim.

REVERSED AND REMANDED.

 *

Clevidence requests oral argument, however, this case is suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3