Carrol Richard Olson v. David R. McKune and Robert Stephan

Tenth Circuit

Carrol Richard Olson v. David R. McKune and Robert Stephan

9 F.3d 95, 1993 U.S. App. LEXIS 29563, 1993 WL 467874

Court of Appeals for the Tenth Circuit·Decided November 16, 1993·No. 93-3144·Published·Cited by 38 cases

Opinion

STEPHEN H. ANDERSON, Circuit Judge.

Petitioner, Carrol Richard Olson, appeals the dismissal of his petition for writ of habe-as corpus, filed pursuant to 28 U.S.C. § 2254. The district court dismissed the petition for failure to exhaust state remedies for nine of the more than twenty claims. On appeal, petitioner argues that all claims raised in the petition have been exhausted in state court. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. 1

“[A] state prisoner bringing a federal ha-beas corpus action bears the burden of showing that he has exhausted available state remedies_” Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.) (citing Clonce v. Presley, 640 F.2d 271, 273 (10th Cir.1981)), cert. denied, - U.S. -, 113 S.Ct. 347, 121 L.Ed.2d 262 (1992). Petitioner has not met that burden. Without specifying how each claim has been exhausted, petitioner simply states in his petition that he has exhausted all state remedies in state court. Petitioner makes the same blanket representation in response to respondents’ nonexhaustion defense and, again in his appellate brief. From our review of the record it appears that Olson may have exhausted six of the nine claims which the district court identified as unexhausted. At least three claims, however, do not appear to have been exhausted. Therefore the district court properly dismissed the petition. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982).

*96 We GRANT petitioner’s motion to proceed in forma pauperis and his application for a certificate of probable cause. The judgment of the United States District Court for the District of Kansas is AFFIRMED.

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 case is therefore ordered submitted without oral argument.

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STEPHEN H. ANDERSON, Circuit Judge.

Petitioner, Carrol Richard Olson, appeals the dismissal of his petition for writ of habe-as corpus, filed pursuant to 28 U.S.C. § 2254. The district court dismissed the petition for failure to exhaust state remedies for nine of the more than twenty claims. On appeal, petitioner argues that all claims raised in the petition have been exhausted in state court. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. 1

“[A] state prisoner bringing a federal ha-beas corpus action bears the burden of showing that he has exhausted available state remedies_” Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.) (citing Clonce v. Presley, 640 F.2d 271, 273 (10th Cir.1981)), cert. denied, - U.S. -, 113 S.Ct. 347, 121 L.Ed.2d 262 (1992). Petitioner has not met that burden. Without specifying how each claim has been exhausted, petitioner simply states in his petition that he has exhausted all state remedies in state court. Petitioner makes the same blanket representation in response to respondents’ nonexhaustion defense and, again in his appellate brief. From our review of the record it appears that Olson may have exhausted six of the nine claims which the district court identified as unexhausted. At least three claims, however, do not appear to have been exhausted. Therefore the district court properly dismissed the petition. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982).

*96 We GRANT petitioner’s motion to proceed in forma pauperis and his application for a certificate of probable cause. The judgment of the United States District Court for the District of Kansas is AFFIRMED.

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 case is therefore ordered submitted without oral argument.

Carrol Richard Olson v. David R. McKune and Robert Stephan, 9 F.3d 95, 1993 U.S. App. LEXIS 29563, 1993 WL 467874 (10th Cir. 1993).

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