Whatley v. Fresno County Attorney General ( 1989 )

872 F.2d 432

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Alton Bea WHATLEY, Jr., Plaintiff-Appellant,
v.
FRESNO COUNTY, Attorney General of California, Defendants-Appellees.

No. 87-2484.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 8, 1989.*
Decided March 31, 1989.

Before KILKENNY, WIGGINS, and NOONAN, Circuit Judges.

1

MEMORANDUM**

2

Alton Whatley, Jr., a California state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. Sec. 2254 habeas corpus petition. The district court dismissed Whatley's petition for failure to exhaust state remedies.

3

The district court's judgement is reversed. Whatley presented his federal habeas claim for back time credits to the California Supreme Court in a petition for habeas corpus. Because Whatley's petition was denied without opinion or citation, we treat Whatley's claim as having been denied on the merits. See Larue v. McCarthy, 833 F.2d 140, 143 (9th Cir.1987) (California Supreme Court "postcard denials" are on the merits). Whatley has therefore exhausted his state remedies.

4

We REVERSE the dismissal of Whatley's petition for habeas corpus and REMAND to the district court for further proceedings.

*

The panel finds this case appropriate for submission without argument pursuant to Fed.R.App.P. 34(a) and 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