John E. Humphrey v. Tamara Holden, Warden Utah State Prison

945 F.2d 411

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

John E. HUMPHREY, Petitioner-Appellant,
v.
Tamara HOLDEN, Warden Utah State Prison, Respondent-Appellee.

No. 91-4036.

United States Court of Appeals,
Tenth Circuit.

Oct. 4, 1991.

Before STEPHEN H. ANDERSON, TACHA and BRORBY, Circuit Judges.

ORDER AND JUDGMENT*

STEPHEN H. ANDERSON, Circuit Judge.

1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

2

John E. Humphrey appeals from the dismissal of his petition for a writ of habeas corpus in which he raised 15 grounds for relief. The district court, adopting the report and recommendation of the magistrate judge, dismissed the petition because of petitioner's failure to exhaust in state court all of the claims raised. 28 U.S.C. § 2254(b), (c). Petitioner argues that the dismissal was erroneous because he did previously raise in state court all of the issues now presented. The record in this case indicates that most claims were raised, some may have been raised either at an improper time or in an improper forum, and some may not have been raised. The brief filed in the district court by the attorney general for the state of State of Utah represents that the petitioner still may have recourse in the Utah courts. The rule requiring exhaustion of all claims is one we must respect. Rose v. Lundy, 455 U.S. 509 (1982). Accordingly, we affirm the district court substantially on the grounds and for the reasons stated in the report and recommendation of the magistrate judge dated January 24, 1991. R. Vol. I, Tab 12. The petitioner must at least give the state courts an opportunity to pass on every claim pursuant to properly followed state court rules of procedure.

3

AFFIRMED. The mandate shall issue forthwith.

*

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3