Jason Schmidt v. Leroy Kirkegard ( 2015 )

FILED
NOT FOR PUBLICATION SEP 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON LEE SCHMIDT, No. 14-35699
Petitioner - Appellant, D.C. No. 2:14-cv-00008-DWM
v.
MEMORANDUM*
LEROY KIRKEGARD and ATTORNEY
GENERAL FOR THE STATE OF
MONTANA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
Montana state prisoner Jason Lee Schmidt appeals pro se from the district
court’s judgment summarily dismissing his 28 U.S.C. § 2254 habeas petition for
failure to exhaust. We have jurisdiction under 28 U.S.C. § 2253. We review de
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
novo the dismissal of a section 2254 habeas petition for failure to exhaust, see
Rhoades v. Henry, 638 F.3d 1027, 1034 (9th Cir. 2011), and we affirm.
Schmidt contends that the district court should have excused the exhaustion
requirement because of the Montana state court’s delay in addressing his petition
for post-conviction relief. At the time the district court dismissed Schmidt’s
federal petition, his amended state petition had only been pending for two months.
On this record, Schmidt has not shown that the available state corrective process is
ineffective. See 28 U.S.C. § 2254(b)(1)(B); Coe v. Thurman, 922 F.2d 528, 530-31
(9th Cir. 1990).
AFFIRMED.
2 14-35699