Linschoten v. Nevada Dept. of Prisons

44 F. App'x 259

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 16, 2002
• Docket: No. 00-15835; D.C. No. CV-00-00027-ECR
• Status: Published

Opinion

MEMORANDUM

**

Michael John Linschoten, a Nevada state prisoner serving a sentence for attempted robbery, appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition for failure to exhaust state remedies. We have jurisdiction pursuant to 28 U.S.C. § 2253, we review de novo, see Coe v. Thurman, 922 F.2d 528, 530 (9th Cir. 1990), and we affirm.

Linschoten contends the district court erred by dismissing his § 2254 petition for failure to exhaust his state remedies, because the failure to do so is excused by the Nevada Supreme Court’s ongoing delay in addressing his appeal from the denial of his petition for post-conviction relief.¹ We reject this contention, however, because any delay in the proceedings in the Nevada Supreme Court is neither excessive nor prejudicial to the point of rising to the level of a due process violation. See Coe, 922 F.2d at 530-31 (explaining that excessive delay in obtaining appeal may eonsti-tute due process violation relieving prisoner of exhaustion requirement); see also United States v. Mohawk, 20 F.3d 1480, 1485 (9th Cir.1994).

AFFIRMED.²

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.

1 . It is unclear from the record whether petitioner actually filed an appeal in the Nevada Supreme Court.

2 . Respondents’ motion to strike the exhibits filed in support of Petitioner’s opening brief is denied.