Unpublished Disposition, 883 F.2d 1023 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1023 (9th Cir. 1989)

Michael S. BLACKHURST, Petitioner-Appellant,v.Dan W. CAROTHERS; State of Alaska; Alaska Department ofCorrections, Respondents-Appellees.

No. 88-4146.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 9, 1989.* Decided Aug. 17, 1989.

Before O'SCANNLAIN, LEAVY and TROTT, Circuit Judges.


Michael S. Blackhurst, appearing pro se, filed a petition for a writ of habeas corpus in federal district court, seeking relief from a conviction for manslaughter in the Superior Court of the State of Alaska. Blackhurst's petition appears to allege that: (1) his statements to the police were coerced and should not have been admitted at trial; (2) the state withheld evidence regarding the full facts of his statements to the police; (3) the trial court erred by not admitting evidence of Blackhurst's theory of self-defense; and (4) the jury should not have been instructed on manslaughter.

The magistrate recommended the petition be dismissed for failure to exhaust available state remedies on claims (1) through (3), observing that Blackhurst might still file an application for post-conviction relief in the Alaska Superior Court pursuant to Rule 35.1 of the Alaska Rules of Criminal Procedure. The district court adopted the magistrate's recommendation and dismissed Blackhurst's petition.

After a de novo review of the district court's dismissal of Blackhurst's petition for a writ of habeas corpus for failure to exhaust state remedies, see McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988) (per curiam), we conclude that Blackhurst's petition contains a mixture of exhausted and unexhausted claims. Blackhurst has failed to pursue the state's remedies still available to him under Rule 35.1. Therefore, the district court did not err in dismissing the petition. Rose v. Lundy, 455 U.S. 509, 518 (1982); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983).



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 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 Ninth Circuit Rule 36-3