Unpublished Disposition, 935 F.2d 274 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 274 (9th Cir. 1991)

Terry Allen LAKE, Petitioner-Appellant,v.Samuel LEWIS, Respondent-Appellee.

No. 90-16400.

United States Court of Appeals, Ninth Circuit.

Submitted May 17, 1991.* Decided June 6, 1991.

Before GOODWIN, SKOPIL and CANBY, Circuit Judges.


MEMORANDUM** 

Terry Allen Lake appeals the district court's dismissal of his habeas corpus petition. The court dismissed the petition without prejudice to allow Lake to exhaust all of his claims through state collateral proceedings. Lake contends that he already has exhausted his claims by raising them on direct appeal in state court. We agree with the district court that Lake failed to exhaust and that dismissal without prejudice is therefore appropriate. We affirm.

DISCUSSION

Federal courts have the authority to review a state prisoner's federal constitutional claim only if available state remedies have been exhausted. 28 U.S.C. § 2254. Here the district court correctly concluded that Lake failed to raise his sufficiency of the evidence claim on direct appeal to the Arizona Court of Appeals. Lake's pro se brief to that court, even construed liberally, cannot be read to include that claim. Accordingly, Lake's claim has not been "fairly presented" to the state court for resolution. See Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986).

The district court also correctly concluded that Lake may attempt to exhaust his claim by seeking post-conviction relief in state court. Under Rule 32 of the Arizona Rules of Criminal Procedure, Lake may obtain review if it is determined that he had a reasonable ground for omitting the claim on direct appeal. The court properly dismissed Lake's petition without prejudice to refiling. See Johnson v. Lewis, 929 F.2d 460, 464 (9th Cir. 1991) (when a federal constitutional claim is unexhausted, the petition should be dismissed without prejudice).

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 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 Ninth Circuit Rule 36-3