Gary Eugene Kukes v. W.E. Estelle, Warden, Attorney General of California

942 F.2d 792, 1991 U.S. App. LEXIS 26220, 1991 WL 166412

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 30, 1991
• Docket: 90-16043
• Status: Unpublished

Opinion

942 F.2d 792

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Gary Eugene KUKES, Petitioner-Appellant,
v.
W.E. ESTELLE, Warden, Attorney General of California,
Respondents-Appellees.

No. 90-16043.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 23, 1991.
Decided Aug. 30, 1991.

Before BROWNING, SNEED, and WILLIAM A. NORRIS, Circuit Judges.

MEMORANDUM**

Gary Eugene Kukes, a California state prisoner, appeals pro se from the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition without prejudice for failure to exhaust state remedies. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989), and we affirm.

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; Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam); Lindquist v. Gardner, 770 F.2d 876, 877 (9th Cir.1985). A petitioner satisfies the exhaustion requirement by fairly presenting all claims to the highest state court with jurisdiction to consider the claims. Picard v. Connor, 404 U.S. 270, 276 (1971).

Kukes raises some claims of ineffective assistance of counsel that were not raised or fairly presented in his state habeas petitions, including, among others, his counsel's failure to introduce certain mitigating evidence or move for dismissal after the prosecution's alleged misconduct during closing argument. Because the federal petition contains unexhausted claims, the district court properly dismissed the entire petition. See Rose v. Lundy, 455 U.S. 509, 510 (1982).

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Kukes's motion for oral argument is denied

** 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