Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1991)

MEMORANDUM^** 

James Russell Snyder appeals the district court's dismissal of his petition for a writ of habeas corpus. Snyder argues that the district court should have stayed the federal habeas proceedings while Snyder's direct appeal of his conviction is pending. He concedes that he has not exhausted his state remedies. We affirm.

BACKGROUND FACTS

On April 25, 1989, Snyder was charged with four misdemeanor counts. At his arraignment on April 26, 1989, and again on May 11, 1989, the trial court denied Snyder's request for appointed counsel. The court based its denial of appointed counsel on Snyder's affidavit of indigency which stated that he owned a "gold nuget wach [sic] worth 1.500" and on a colloquy between Snyder and the court in which Snyder stated that the watch had a value of $1,500.00. A second affidavit of indigency failed to list the watch; when asked about its omission, Snyder stated that he had sold the watch for $20.00.

While Snyder's petition to compel appointment of counsel was pending in the Oregon Supreme Court, he was tried without an attorney and convicted. On June 22, 1989, Snyder was sentenced to one year in jail. Snyder filed a timely appeal of his conviction in the Oregon state courts, and that appeal is still pending.

Snyder filed his petition for writ of habeas corpus in federal court on August 4, 1989, while he remained in state custody. The State of Oregon moved for dismissal of the petition for failure to exhaust state remedies. Snyder then moved for a stay of the federal proceedings pending exhaustion of his state remedies. In its order of June 11, 1990, the district court adopted the magistrate's recommendation to deny the motion for stay and to dismiss Snyder's petition. Judgment was filed June 13, 1990 and Snyder filed a timely appeal. He has fully served his one year sentence.

DISCUSSION

The district court had jurisdiction under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1291. The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989).

Snyder contends that the district court should have stayed the federal habeas corpus proceedings pending exhaustion of state remedies because he will no longer be entitled to federal habeas relief should the state courts deny him relief. Because he is no longer in custody, he could not bring a new petition in the federal courts if his direct appeal fails.

Snyder concedes that he has not exhausted the available state remedies. Under the law of this circuit, his petition was properly dismissed as premature. See Sherwood v. Tomkins, 716 F.2d 632 (9th Cir. 1983). There are no special circumstances to justify departure in this case. See Slayton v. Smith, 404 U.S. 53, 92 S. Ct. 175, 30 L. Ed. 2d 209 (1971), which contrasted the usual case with the very unique situations presented in Nelson v. George, 399 U.S. 224, 90 S. Ct. 1963, 26 L. Ed. 2d 578 (1970), and Wade v. Wilson, 396 U.S. 282, 90 S. Ct. 501, 24 L. Ed. 2d 470 (1970).

Neither Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied, --- U.S. ---- (Feb. 25, 1991), nor Williams v. Hepting, 844 F.2d 138 (3d Cir.), cert. denied, 488 U.S. 851, 109 S. Ct. 135, 102 L. Ed. 2d 107 (1988), provides support for Snyder's position. Both cases involved civil rights actions brought in federal court by state prisoners while the appeals of their respective convictions were still pending. Stays were granted to prevent interference in the state court proceedings while simultaneously protecting the claimants' right to a federal forum to sue for damages. In those cases, the best way to protect comity was to stay the federal actions. Here, comity is best served by dismissal of the petition.

The district court's order dismissing Snyder's petition for a writ of habeas corpus is affirmed.

AFFIRMED.