Unpublished Disposition, 878 F.2d 386 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 386 (9th Cir. 1989)

Faysal Mansoor PASHA, Petitioner-Appellant,v.Daniel J. McCARTHY, Respondent-Appellee.

No. 88-1683.

United States Court of Appeals, Ninth Circuit.

Submitted June 21, 1989.* Decided June 23, 1989.

Raul Ramirez, District Judge, Presiding.

Before: HUG, SCHROEDER and LEAVY, Circuit Judges.


MEMORANDUM** 

Faysal Mansoor Pasha, a California prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas petition for failure to exhaust state remedies. In his petition, Pasha alleged several constitutional violations arising from the imposition of an additional term of imprisonment for his failure to sign his parole papers, and a claim that he will be subjected to cruel and unusual punishment if his is paroled to the county selected by parole authorities. We review de novo, Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1988), and affirm.

In its denial of Pasha's state habeas petition, the California Supreme Court stated:

Petition for writ of habeas corpus DENIED for failure to provide an adequate factual basis concerning the claim relating to the county to which the petitioner is to be released on parole. (See In re Swain (1949) 34 Cal. 2d 300, 304). In all other respects the petition is denied.

The citation to Swain indicates that the court declined to hear Pasha's eighth amendment claim relating to his release on parole on procedural grounds rather than deciding it on the merits. See Harris v. Superior Court, 500 F.2d 1124, 1127-28 (9th Cir. 1974) (en banc), cert. denied, 420 U.S. 973 (1975). Because Pasha may bring this claim in another state habeas petition, an avenue for raising this claim remains open. Accordingly, this claim is unexhausted. See Sweet v. Cupp, 640 F.2d 233, 238 (9th Cir. 1981) (claim not exhausted if highest state court declines to hear it on procedural grounds and another avenue for raising claim remains open).

Because Pasha has failed to exhaust all of his claims, the district court did not err in dismissing his habeas petition. See Rose v. Lundy, 455 U.S. 509, 522 (1982).

AFFIRMED.1 

 *

The panel unanimously finds this case 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

 1

Pasha has moved this court to stay all proceedings in this appeal indefinitely because the defendants have limited his access to law libraries, thereby "making it impossible to submit sufficient briefs." Pasha has, however, been able to file opening and reply briefs which adequately state his position. Moreover, any further arguments he might make to this court would not alter our decision that his habeas petition contains an unexhausted claim. His motion is therefore denied