Unpublished Disposition, 912 F.2d 468 (9th Cir. 1990)

MEMORANDUM^** 

Keith D. Bell, in pro se, petitioned the district court for a writ of habeas corpus. He alleged that the California trial court which convicted him of various sex crimes denied him his right to a fair trial and his right to be tried by jury when it failed to reread a portion of the people's evidence, as requested by the jury during its deliberations.

The district court dismissed the petition with prejudice and Bell filed a timely appeal to this court. We have jurisdiction under 28 U.S.C. § 1291 (1988). Reviewing de novo, see Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), we vacate the district court's dismissal with prejudice and remand for dismissal without prejudice because Bell's petition contains unexhausted claims as well as exhausted claims.

a. Exhaustion

Although Bell's petition states only the above-mentioned issues and the district court's order addresses only those issues, Bell asserted in his traverse and supporting legal memorandum in the district court that he was denied counsel at a critical stage of his trial and deprived of his fundamental right to be present at all stages of his trial. Bell also stated in his legal memorandum that all arguments he made in that document should be incorporated into his habeas petition and that he was "resubmitting" his habeas petition. Our review of the record reveals that Bell did not exhaust his state remedies on these issues.

If we find that Bell did raise these issues below, we must vacate the district court's dismissal with prejudice of Bell's habeas petition and remand for a dismissal without prejudice, leaving Bell the option of submitting a new petition with only his exhausted claim or exhausting state remedies on his unexhausted claims and then filing a petition with all his claims. See Rose v. Lundy, 455 U.S. 509, 510 (1982); Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988).

While a justifiable argument could be made that judicial economy favors our finding that Bell did not raise the unexhausted issues in his petition, and proceeding to the merits of the issues that Bell explicitly presented, such a course of action might leave Bell precluded from raising the unexhausted issues in a future petition. See 28 U.S.C. § 2254 Rule 9(b) ("a second or successive petition may be dismissed ... if new and different grounds are alleged [and] the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ"). The requirement that we dismiss petitions that raise both exhausted and unexhausted claims without prejudice was instituted in part to give the petitioner the choice whether to take this chance. See Rose, 455 U.S. at 520-21. We therefore believe it proper, in line with our policy of liberally construing pro se pleadings, to find that in filing his traverse Bell incorporated the unexhausted claims into his petition.

b. Motion for use of the law library

Bell's motion in this court for use of the prison law library and legal supplies in connection with this case is denied. Such a motion should have been filed in district court unless shown to be impracticable. Fed. R. App. P. 8(a). Bell has made no such showing.

We VACATE the district court's dismissal of Bell's petition with prejudice and REMAND the case for the district court to dismiss Bell's petition without prejudice.