Lemrick Thomas, Petitioner-appellant, v. Richard H. Rison, Respondent-appellee, 942 F.2d 794 (9th Cir. 1991)

Before REINHARDT and FERNANDEZ, Circuit Judges, and CROCKER,^**  District Judge.

MEMORANDUM^*** 

Thomas appeals from an order dismissing his petition for writ of habeas corpus for failure to exhaust his state remedies under 28 U.S.C. § 2254(b). Thomas is in custody pursuant to a state court judgment: he was convicted of murder in the Court of Common Pleas of Philadelphia County, Trials Division, Pennsylvania. After being transferred to an out of state federal prison, Thomas challenged the legality of his confinement by way of petition for writ of habeas corpus, invoking 28 U.S.C. § 2241 jurisdiction. Since he had previously filed a claim under state post-conviction proceedings, which was still pending, the district court dismissed.

Thomas, as a prisoner in custody, qualifies under the general federal habeas jurisdictional statute, 28 U.S.C. § 2241. However, because his conviction is pursuant to a state court judgment, he must exhaust his state remedies before we can consider his petition on the merits. 18 U.S.C. § 2254(b) specifically so provides. See Tinsley v. Borg, 895 F.2d 520, 522 (9th Cir. 1990). Accordingly, the district court was correct in dismissing the action.

AFFIRMED.