Edward E. Allen, Plaintiff-appellant, v. State of Oregon, Defendant-appellee, 990 F.2d 1255 (9th Cir. 1993)

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US Court of Appeals for the Ninth Circuit - 990 F.2d 1255 (9th Cir. 1993) Submitted March 10, 1993. *Decided March 16, 1993

Before WALLACE, Chief Judge, and FARRIS and BRUNETTI, Circuit Judges.


Edward E. Allen, a pro se prisoner, appeals from the district court's order construing his petition for writ of coram nobis as a petition for writ of habeas corpus and denying it for failure to exhaust state remedies. We affirm the district court.

Appellant filed an "Application for a Writ of Coram Nobis" in the district court, seeking to set aside his conviction in state court. The district court properly construed the application as a petition for a writ of habeas corpus. See Franklin v. State of Oregon, 662 F.2d 1337, 1347 n. 13 (9th Cir. 1981).

The district court properly denied habeas corpus relief under 28 U.S.C. § 2254 for failure to exhaust state remedies. See Rose v. Lundy, 455 U.S. 509 (1982). Appellant must first proceed through his direct appeals from the state court's final judgment of conviction and sentence, and then pursue habeas relief in the state courts before challenging his conviction in federal court. Id. Appellant's argument that he cannot appeal his criminal conviction for want of a valid final judgment lacks merit. The state trial court did not lack jurisdiction to impose a sentence and enter a final judgment. See O.R.S. § 19.034. Thus, a final judgment exists from which to exhaust state remedies.



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