Anthony Barone, Petitioner-appellant, v. Sherman Hatcher, Warden; the Attorney General of the Stateof Nevada, Respondents-appellees, 65 F.3d 174 (9th Cir. 1995)

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US Court of Appeals for the Ninth Circuit - 65 F.3d 174 (9th Cir. 1995) Submitted Aug. 16, 1995. *Decided Aug. 23, 1995

Before: ALARCON, FERNANDEZ, and RYMER, Circuit Judges.


Anthony Barone, a Nevada state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 petition. He contends the district court erred by granting the State's motion to dismiss. We have jurisdiction pursuant to 28 U.S.C. § 2253. After accepting the district court's factual findings unless clearly erroneous and reviewing its conclusions of law de novo, Jones v. Meyer, 899 F.2d 883, 884 (9th Cir.), cert. denied, 498 U.S. 832 (1990), we affirm.

On August 22, 1994, the district court granted the State's motion to dismiss on the grounds that: (a) Barone had consented to the State's motion to dismiss by failing to file a timely response as required by Local Rule 140-6; (b) the petition contained an unexhausted claim; and (c) the petition did not fully comply with Rule 2(c) of the Rules Governing Section 2254 cases.

Because Barone's petition contains an unexhausted claim, the district court properly dismissed Barone's petition without prejudice. See Rose v. Lundy, 455 U.S. 509, 510 (1982) (district court must dismiss petition which contains any unexhausted claim). We do not reach the other bases of the district court's August 22, 1994 order.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, appellant's request for oral argument is denied


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