Unpublished Disposition, 886 F.2d 1320 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 886 F.2d 1320 (9th Cir. 1989)

Donald Kenneth NELSON, Petitioner-Appellant,v.Samuel A. LEWIS; Lloyd Bramlett; State of Arizona,Respondents-Appellees.

No. 88-15282.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 22, 1989.* Decided Sept. 27, 1989.

Before KILKENNY, WIGGINS and NOONAN, Circuit Judges.


Donald Nelson, an Arizona state prisoner, appeals the district court's dismissal without prejudice of his 28 U.S.C. § 2254 habeas corpus petition. The district court based its dismissal on Nelson's failure to exhaust state remedies. We affirm the dismissal.

Nelson acknowledges that the state courts have not considered all of his claims raised in this habeas corpus petition. He contends, however, that his failure to exhaust should be excused because no state remedies were available to him at the time he filed his federal petition, he did not deliberately bypass any such remedies, and he can demonstrate cause and prejudice for any state procedural default. We disagree.

Nelson could have filed for relief in Arizona pursuant to Arizona Rules of Criminal Procedure 32. He is not bound by the one-year period of limitation for making such a claim. State v. Fowler, 156 Ariz. 408, 413-14, 752 P.2d 497, 502 (Ct.App.1987). Accordingly, federal jurisdiction to consider the current petition is absent. Rose v. Lundy, 455 U.S. 509, 522 (1982).



The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and 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