Unpublished Disposition, 940 F.2d 1537 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 940 F.2d 1537 (9th Cir. 1989)

Leon WEAVER, Petitioner-Appellant,v.Eddie YLST, et al., Respondents-Appellees.

No. 90-16583.

United States Court of Appeals, Ninth Circuit.

Submitted July 29, 1991.* Decided Aug. 5, 1991.

Before FARRIS, ALARCON and THOMAS G. NELSON, Circuit Judges.


MEMORANDUM** 

Leon Weaver, a California state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition for failure to exhaust state remedies. We review de novo, Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989), and affirm.

On April 18, 1989, Weaver filed his petition for habeas corpus. Because it was not clear from the face of the petition the grounds on which Weaver sought relief or whether he had exhausted state remedies, the district court ordered Weaver to "file a copy of the order filed by the California Supreme Court and a declaration stating the date of disposition of the petition, and the grounds raised in said petition." In addition, the district court ordered Weaver to "set forth what grounds he is raising in his petition filed with this Court."

On August 28, 1989, Weaver responded to the order by filing a copy of the "Topical Index" of his petition to the California Supreme Court and a copy of the Supreme Court's order summarily denying the petition. Weaver also filed a statement that " [t]he [i]ssues raised in the California Supreme Court remain the issues raised herein, with the exception of the total incompetence and ineffective assistance of trial counsel." The "Topical Index" contains nothing that would indicate that Weaver raised a claim of ineffective assistance of counsel before the California Supreme Court.

A state prisoner must exhaust all available state court remedies before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254; Sec. 2254(b); Duckworth v. Serrano, 454 U.S. 1, 3 (1981). Ordinarily, every claim raised by the petitioner must be exhausted before the federal court may consider the merits of the petition. Rose v. Lundy, 455 U.S. 509, 510 (1982). A petitioner has satisfied the exhaustion requirement if he has given the state court a fair opportunity to consider the claim before he presents it to the federal habeas court. Picard v. Connor, 404 U.S. 270, 276 (1971).

Here, it is undisputed that Weaver failed to exhaust state court remedies with respect to his claim of ineffective assistance of counsel, which has not been presented to the California Supreme Court. Accordingly, the district court properly dismissed the entire petition for failure to exhaust state remedies because the petition contained an unexhausted claim. Rose, 455 U.S. at 510.

AFFIRMED.1 

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 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

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 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

 1

On appeal, Weaver seeks to have this court address the merits of his exhausted claims. If Weaver wishes to proceed to the merits of his petition, he may resubmit his habeas petition with only the exhausted claims to the district court or exhaust his unexhausted claim in state court before filing a new petition. See Rose, 455 U.S. at 510. As the magistrate cautioned, however, if Weaver chooses to proceed only with his exhausted claims, he may risk forfeiting consideration of the unexhausted claims in federal court in a subsequent petition. See McClesky v. Zant, 111 S. Ct. 1454, 1470 (1991)