John Richard Stewart, Petitioner-appellant, v. Daniel Vasquez, Warden, San Quentin Prison, Respondent-appellee, 951 F.2d 362 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 951 F.2d 362 (9th Cir. 1991) Argued and Submitted Dec. 10, 1991. Decided Dec. 20, 1991

Before ALDISERT* , GOODWIN and NOONAN, Circuit Judges,

ORDER** 

Stewart has presented to the district court and in his brief to this court the claim that his non-force convictions, as well as force convictions, should be set aside. He takes the position that he raised this claim in his original petition and he clearly raised it in argument before the district court and before us. Even if the state did not make the objection in the district court that these claims had not been exhausted in the state court, we have discretion to dismiss the petition. Stone v. Godbehere, 894 F.2d 1131, 1135 (9th Cir. 1990). Comity and federalism will be best served by giving the state courts the opportunity to consider Stewart's unexhausted claims. Granberry v. Greer, 481 U.S. 129, 134-35 (1989); Rose v. Lundy, 455 U.S. 509 (1982).

DISMISSED FOR LACK OF JURISDICTION.

 *

The Honorable Ruggero J. Aldisert, Senior Circuit Judge, United States Court of Appeals for the Third Circuit, sitting by designation

 **

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 Cir.R. 36-3

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