Fordjour v. Stewart

Ninth Circuit

Fordjour v. Stewart

44 F. App'x 789

CourtCourt of Appeals for the Ninth Circuit

DecidedAugust 15, 2002

DocketNo. 00-16326; D.C. No. CV-00-00895-ROS

StatusPublished

This text of 44 F. App'x 789 (Fordjour v. Stewart) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fordjour v. Stewart, 44 F. App'x 789 (9th Cir. 2002).

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Opinion

MEMORANDUM

**

Charles Fordjour appeals the district court’s order dismissing without prejudice his habeas corpus petition under 28 U.S.C. § 2254 as unexhausted. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal of Fordjour’s habeas petition, see Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir.), cert, denied, — U.S.-, 122 S.Ct. 406, 151 L.Ed.2d 308 (2001), and we affirm.

Fordjour argues that he exhausted his state remedies by presenting his federal habeas claims to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir.1999) (ruling federal habeas petitioners with no available state remedies had exhausted their claims for purposes of federal habeas review upon presentment to the Arizona Court of Appeals). Fordjour asserts the district court erred in ruling that his § 2254 petition was premature due to his pending petition for review with the Arizona Supreme Court.

Section 2254 provides that a habeas petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question[s] presented.” 28 U.S.C. § 2254(c); see also [790]*790O’Sullivan v. Boerckel, 526 U.S. 838, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

Unlike the appellant in Swoopes, Fordj-our still had state remedies available. See Swoopes, 196 F.3d at 1009. Specifically, Fordjour’s pending petition for review with the Arizona Supreme Court could have resulted in the reversal of his conviction on some other ground, thereby mooting any federal questions. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983).

Accordingly, Fordjour’s federal habeas petition was clearly premature, thus it was properly dismissed without prejudice by the district court for failure to exhaust state remedies.

AFFIRMED.***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

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MEMORANDUM

**

Charles Fordjour appeals the district court’s order dismissing without prejudice his habeas corpus petition under 28 U.S.C. § 2254 as unexhausted. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal of Fordjour’s habeas petition, see Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir.), cert, denied, — U.S.-, 122 S.Ct. 406, 151 L.Ed.2d 308 (2001), and we affirm.

Fordjour argues that he exhausted his state remedies by presenting his federal habeas claims to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir.1999) (ruling federal habeas petitioners with no available state remedies had exhausted their claims for purposes of federal habeas review upon presentment to the Arizona Court of Appeals). Fordjour asserts the district court erred in ruling that his § 2254 petition was premature due to his pending petition for review with the Arizona Supreme Court.

Section 2254 provides that a habeas petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question[s] presented.” 28 U.S.C. § 2254(c); see also [790]*790O’Sullivan v. Boerckel, 526 U.S. 838, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

Unlike the appellant in Swoopes, Fordj-our still had state remedies available. See Swoopes, 196 F.3d at 1009. Specifically, Fordjour’s pending petition for review with the Arizona Supreme Court could have resulted in the reversal of his conviction on some other ground, thereby mooting any federal questions. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983).

Accordingly, Fordjour’s federal habeas petition was clearly premature, thus it was properly dismissed without prejudice by the district court for failure to exhaust state remedies.

AFFIRMED.***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

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