Edward E. Allen v. Oregon State ( 1992 )

974 F.2d 1341

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 91-36353.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 24, 1992.*
Decided Aug. 31, 1992.

Before BRUNETTI, RYMER and KLEINFELD, Circuit Judges.

1

MEMORANDUM**

2

Edward E. Allen, an Oregon state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition for failure to exhaust state remedies. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989), and we affirm.

3

A state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b), (c); Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam); Lindquist v. Gardner, 770 F.2d 876, 877 (9th Cir.1985).

4

Allen concedes that he has failed to exhaust his state remedies but asserts that this failure is due to the fact that there is no state remedy for the wrongs which he alleges he suffered. Allen contends the state trial court was divested of jurisdiction to sentence him or to enter a final judgment in his state criminal case by his filing of a premature notice of appeal from his conviction. On the record before us, it is clear that Allen may raise each of his claims in state court either by way of a direct appeal of the state trial court's purportedly illegal judgment and sentencing or by way of a state habeas petition.

5

Accordingly, the district court did err by dismissing the habeas petition because Allen failed to exhaust his state court remedies. See 28 U.S.C. § 2254(b), (c); Duckworth, 454 U.S. at 3; Lindquist, 770 F.2d at 877.

6

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 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