Byron S. Woolley, Plaintiff-appellant, v. Robert G. Borg, Warden, Defendant-appellee, 892 F.2d 1048 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 892 F.2d 1048 (9th Cir. 1989)

Submitted Aug. 22, 1989. Decided Dec. 14, 1989


Before JAMES R. BROWNING, KOZINSKI and RYMER, Circuit Judges.


MEMORANDUM** 

Appellant Woolley appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition for failure to exhaust state remedies. A federal district court must dismiss a federal habeas petition that contains any claim for which state remedies have not been exhausted. Rose v. Lundy, 455 U.S. 509, 520, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982); Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987), cert. denied, --- U.S. ----, 109 S. Ct. 1327, 103 L. Ed. 2d 595 (1989).

Appellant's Opening Brief alleges that he has exhausted all available state remedies. However, the findings of the magistrate, adopted by the district court's order of October 31, 1988, dismissing the petition, specifically stated that each of the claims petitioner raised in his petition has not been presented to the California Supreme Court. There is no evidence in the record to contravene this finding. Thus, the district court properly dismissed the petition. If appellant has indeed exhausted all available state remedies since the district court entered its order on October 31, 1988, he may resubmit his petition containing only exhausted claims to the district court. See Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988).

AFFIRMED.

 *

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