Robert Foster Adams, Petitioner-appellant, v. Richard H. Bryan, Individually and in His Capacity Asgovernor of the State of Nevada, Walter Luster,warden, Respondents-appellees, 892 F.2d 1045 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 892 F.2d 1045 (9th Cir. 1989)

Submitted July 25, 1989. *Decided Dec. 14, 1989

Before BROWNING, KOZINSKI and RYMER, Circuit Judges.


Adams appeals dismissal of his 28 U.S.C. § 2254 petition for habeas corpus. Dismissal of a federal habeas corpus petition is appropriate when a petitioner fails to exhaust available and adequate state court remedies. Harris v. Superior Court, 500 F.2d 1124 (9th Cir. 1974). The exhaustion requirement may be satisfied in two ways: "(1) by providing the highest state court with an opportunity to rule on the merits of the claim ...; or (2) by showing that at the time the petitioner files the habeas petition in federal court no state remedies are available to the petitioner and the petitioner had not deliberately by-passed the state remedies." Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982) (citations omitted). Adams bypassed an available state court remedy when he failed to appeal to the highest court of the State of Nevada from the trial court's denial of his petition for writ of habeas corpus. Further, he made no showing as to the unavailability of state remedies. Consequently, the dismissal of his petition is warranted.



The panel unanimously finds this case suitable for decision 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