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Patrick James Campbell v. Roger W. Crist, Warden of Montana State Prison and Mike Greely, Montana State Attorney General , 647 F.2d 956 ( 1981 )


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  • 647 F.2d 956

    Patrick James CAMPBELL, Petitioner-Appellant,
    v.
    Roger W. CRIST, Warden of Montana State Prison and Mike
    Greely, Montana State Attorney General,
    Respondents-Appellees.

    No. 80-3285.

    United States Court of Appeals,
    Ninth Circuit.

    Submitted April 6, 1980.
    Decided June 8, 1981.

    Patrick James Campbell, for petitioner-appellant.

    Mark J. Murphy, Asst. Atty. Gen., Helena, Mont., for respondents-appellees.

    Appeal from the United States District Court for the District of Montana.

    Before SKOPIL and POOLE, Circuit Judges, and KENYON,* District Judge.

    SKOPIL, Circuit Judge:

    1

    Campbell appeals the denial of a writ of habeas corpus. Campbell v. Crist, 491 F. Supp. 586 (D.Mont.1980). He contends that the state court lacked jurisdiction to try him for a robbery committed on the Flathead Indian Reservation. He raises numerous other objections regarding the adequacy of the state proceedings, and of his representation by counsel. We affirm.

    2

    Normally, a federal court will not entertain a state prisoner's petition for writ of habeas corpus unless the petitioner has exhausted available state judicial remedies. 28 U.S.C. § 2254(b); Sweet v. Cupp, 640 F.2d 233 at 236 (9th Cir. 1981). If the petitioner's claim was not presented to the state courts on direct appeal, state collateral remedies must be exhausted. 28 U.S.C. § 2254(c); Sweet v. Cupp, supra.

    3

    This court may consider whether state remedies have been exhausted even if the state does not raise the issue. Rose v. Dickson, 327 F.2d 27, 28 (9th Cir. 1964). See also Sweet v. Cupp, supra at 237 & n.5.

    4

    There is no indication in the record that Campbell has exhausted available state judicial remedies. In the interest of comity we will not consider the merits of Campbell's petition.

    5

    The judgment appealed from is AFFIRMED.

    *

    Honorable David V. Kenyon, United States District Judge for the Central District of California, sitting by designation