Robert James Ossawa Wood, Petitioner-appellant, v. James H. Gomez, Director, Cdc; Judith Mcgillivrary, Dir.phd; Daniel E. Lungren; Attorney General, Stateof California; Julian S. Marquez,warden, Respondents-appellees, 94 F.3d 654 (9th Cir. 1996)Annotate this Case
Before: BROWNING, SCHROEDER and RYMER, Circuit Judges.
Robert James Wood, a California state prisoner, appeals pro se the district court's dismissal of his petition for writ of habeas corpus. The district court dismissed the petition for Wood's failure to exhaust or dismiss a single ex post facto claim which, the district court determined, Wood had failed to present to the highest state court.
Wood contends on appeal that the district court erred. He argues the merits of all his claims, but he does not make any showing that he, in fact, presented his ex post facto claim to the highest state court.
" [W]e review for clear error any factual findings made by the district court in deciding the petition." Jones v. Meyer, 899 F.2d 883 (9th Cir. 1990). The petitioner bears the burden of showing that he has exhausted state remedies. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981), cert. denied, 455 U.S. 1023 (1982); see also Circuit Rule 30-1.2(a) (x) (when an issue on appeal is based on written exhibits, excerpts of record shall include "those specific portions of the exhibits necessary to resolve the issue").
Wood has presented nothing to refute the district court's conclusion that he never exhausted his ex post facto claim. We find no clear error, See Jones, 899 F.2d at 884, and we uphold the dismissal.