Unpublished Disposition, 931 F.2d 60 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 931 F.2d 60 (9th Cir. 1991)

Frank S. MORGAN, Petitioner-Appellant,v.Dorothy VIGIL, Warden, et al., Respondents-Appellees.

No. 90-15652.

United States Court of Appeals, Ninth Circuit.

Submitted April 19, 1991.* Decided April 23, 1991.

Before POOLE, D.W. NELSON and NOONAN, Circuit Judges.


MEMORANDUM** 

Frank S. Morgan, an Arizona state prisoner, appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition without prejudice for failure to exhaust state remedies. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we affirm.

A state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254; Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam); Lindquist v. Gardner, 770 F.2d 876, 877 (9th Cir. 1985). A petitioner satisfies the exhaustion requirement by fairly presenting all claims to the highest state court with jurisdiction to consider the claims. Picard v. Connor, 404 U.S. 270, 276 (1971).

Here, although Morgan filed a state habeas petition in the Arizona Supreme Court, the court did not address the merits of his petition but instead instructed him to present his claims to the trial court by way of a petition for post-conviction relief. Morgan currently has such a petition pending in state court which he filed with the assistance of counsel, and thus he is in the process of exhausting his state remedies. Accordingly, the district court properly denied his federal petition for failure to exhaust state remedies.

On appeal, Morgan requests that this court hold his habeas proceedings in abeyance pending exhaustion of his state court remedies which may moot his federal challenges to the validity of his conviction. Because a dismissal for failure to exhaust state remedies operates as a dismissal without prejudice, see Guizar v. Estelle, 843 F.2d 371, 371 (9th Cir. 1988), Morgan will not be barred from refiling his federal petition once he has exhausted his state remedies. Accordingly, we decline to hold the federal proceedings in abeyance.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition 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