Unpublished Disposition, 930 F.2d 29 (9th Cir. 1990)

MEMORANDUM^** 

Petitioner, Thomas Ray (Ray) appeals from the dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 for failure to exhaust state remedies. The decision whether to grant or deny a petition for habeas corpus is reviewed de novo, United States v. Popoola, 881 F.2d (9th Cir. 1989), and we affirm.

Exhaustion of available state remedies is a prerequisite to the filing of a habeas petition in federal court. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 510 (1982). Every claim raised by the petitioner must be exhausted in state courts before the federal court may consider the merits of the petition. Id. at p. 510

Ray was convicted of the crimes of possession with intent to manufacture heroin and possession with intent to manufacture methamphetamine in August 1988. On August 26, 1988 Ray appealed his conviction to the Washington State Court of Appeals on the ground that the trial court wrongfully denied his motion to suppress the controlled substances and related paraphernalia seized by the police pursuant to a search warrant. The State of Washington v. Thomas Clayton Ray, No. 12231-6-II, Slip op. at 1 (Wash.Ct.App. Nov. 15, 1989). While his court of appeals claim was still pending, Ray filed a Writ for Habeas Corpus with the Washington State Supreme Court. The Writ was returned by the clerk of the court for failure to concurrently file an in forma pauperis (IFP) petition.¹  CR 19 at 2, CR 2 at 5. Ray claims that he filed an IFP petition and it was stamped "received" by the clerk of the court on November 4, 1988. However, there is no evidence of any such filing in the record.²  After the clerk returned his petition for habeas corpus, Ray makes no further attempt to refile his habeas petition. Instead, Ray filed a petition for habeas corpus with the United States District Court on December 10, 1988. Ray's claim with the State Court of Appeals was still pending at this time. On November 15, 1989 the State Court of Appeals affirmed the trial court, finding the controlled substances and paraphernalia were properly seized. The State of Washington v. Thomas Clayton Ray, No. 12231-6-II, Slip op. at 1 (Wash.Ct.App. Nov. 15, 1989). No appeal has been taken from this ruling.

Ray filed a personal restraint petition with the State Court of Appeals on March 7, 1989 challenging the trial court's calculation of his offender score. The Chief Judge found no error and dismissed Ray's petition in an order filed July 13, 1989. On March 5, 1990 Ray appealed this decision to the State Supreme Court by filing a motion for discretionary review. The Supreme Court denied discretionary review noting that Ray was over six months late in filing his motion. There is no record of any other post-conviction relief sought by Ray.

In his federal habeas corpus petition Ray alleges numerous violations of his constitutional rights. Ray argues that he was illegally transported by Washington authorities from Alaska on May 27, 1988. Ray also claims that he was unconstitutionally tried because he was not indicted. Lastly, Ray alleges various flaws in the conduct of trial (relating to perjury, improperly denied depositions, and denial of his right to defend himself).

Before Ray can file a petition for habeas corpus in the federal courts, he must first exhaust all available state remedies. Rose v. Lundy, 455 U.S. 509 (1982). Thus, every claim made by Ray must have been raised and considered by the state court before the federal court may consider the merits of the petition. Although Ray alleges that he has presented all grounds and many more to the Washington Supreme Court, records show that he has only presented one claim regarding the trial court's calculation of his offender score (see footnote 1). This is not one of the issues raised by Ray in his habeas petition. Further, in his initial appeal from his conviction, Ray only raises the issue of the admissibility of evidence seized by a search warrant. Once again, this is not an issue raised within the habeas petition.³ 

The District Courts dismissal of Ray's habeas petition is affirmed.