Coleman v. Armontrout

676 F. Supp. 927, 1987 U.S. Dist. LEXIS 12495, 1987 WL 33840

Opinion

MEMORANDUM

NANGLE, Chief Judge.

By memorandum dated August 24, 1987, the Court concluded that several of petitioner’s grounds for relief, including his challenge to his conviction based on errors in the first-degree murder instruction and based on a defect in jurisdiction, have not been exhausted. The Court directed petitioner to advise the Court whether he wished to delete his unexhausted grounds for relief and proceed with his exhausted grounds. In response, on September 24, 1987, petitioner filed a letter and suggested findings of fact in which petitioner indicated that he wished to delete all his grounds for relief except the instruction and jurisdiction grounds. By order and memorandum dated September 29, 1987, the Court advised petitioner that these grounds for relief have not been exhausted and provided petitioner with an additional opportunity to delete his unexhausted grounds. On October 28, 1987, petitioner filed a response to the Court’s September 29 order and. memorandum in which petitioner again urged the Court to consider his instruction and jurisdiction grounds for relief, claiming they are exhausted.

Petitioner believes his instruction and jurisdiction grounds for relief are exhausted. The Court concludes that the instruction and jurisdiction grounds for relief are not exhausted, and therefore that the petition is a mixed petition. Petitioner will not delete the unexhausted grounds. Thus, the Court dismisses the entire petition as a mixed petition.