Kenneth Ian Edmonton, Petitioner-appellant, v. People of the State of California; Robert Borg, Warden Offolsom State Prison; Daniel E. Lungren, Attorneygeneral of the State of California,respondents-appellees, 979 F.2d 854 (9th Cir. 1992)

MEMORANDUM^** 

Kenneth Edmonton, a California state prisoner, appeals pro se the denial of his application for release on his own recognizance on bail pending his state court appeal.¹  We review de novo the district court's decision on a habeas petition. Desire v. Attorney General of California, No. 91-55334, slip op. 11233, 11237 (9th Cir. Sept. 16, 1992). We have jurisdiction pursuant to 28 U.S.C. § 2253 and we affirm.

The federal remedy of habeas corpus lies only if an individual is in custody in violation of the federal constitution or other federal laws. 28 U.S.C. § 2254(a). A state prisoner must either exhaust his available remedies in state court before bringing a habeas petition in federal court or have a valid excuse for failing to exhaust. 28 U.S.C. § 2254(b) & (c).

Here, Edmonton raises the issue of the state's administration of its bail system with "caprice and discrimination" for the first time in this court. The merits of this claim have not previously been fairly presented to the highest state court with jurisdiction to hear it. Picard v. Connor, 404 U.S. 270 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). We must dismiss a petition for a writ of habeas corpus if it contains unexhausted claims. McQuown v. McCartney, 795 F.2d 807, 810 (9th Cir. 1986) (citing Rose v. Lundy, 455 U.S. 509, 522 (1982)). Therefore, the district court properly dismissed this case.

AFFIRMED.