Jason Schmidt v. Leroy Kirkegard

615 F. App'x 449

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 1, 2015
• Docket: 14-35699
• Status: Unpublished

Opinion

MEMORANDUM **

Montana state prisoner Jason Lee Schmidt appeals pro se from the district court’s judgment summarily dismissing his 28 U.S.C. § 2254 habeas petition for failure to exhaust. We have jurisdiction under 28 U.S.C. § 2253. We review de novo the dismissal of a section 2254 habeas petition for failure to exhaust, see Rhoades v. Henry, 638 F.3d 1027, 1034 (9th Cir.2011), and we affirm.

Schmidt contends that the district court should have excused the exhaustion requirement because of the Montana state court’s delay in addressing his petition for post-conviction relief. At the time the district court dismissed Schmidt’s federal petition, his amended state petition had only been pending for two months. On this record, Schmidt has not shown that the available state corrective process is ineffective. See 28 U.S.C. § 2254(b)(1)(B); Coe v. Thurman, 922 F.2d 528, 530-31 (9th Cir.1990).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.