872 F2d 427 Evans v. Ylst
872 F.2d 427
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
James Eugene EVANS, Petitioner-Appellant,
v.
Eddie YLST, Warden, Respondent-Appellee.
No. 88-2839.
United States Court of Appeals, Ninth Circuit.
Submitted* Feb. 28, 1989.
Decided April 13, 1989.
Before PREGERSON, O'SCANNLAIN and TROTT, Circuit Judges.
MEMORANDUM**
James Eugene Evans, a California state prisoner, appeals pro se and in forma pauperis the district court's dismissal without prejudice of his petition for a writ of habeas corpus for failure to exhaust state remedies. Because it is not clear to us whether state remedies have been exhausted, the case is remanded to the district court.
On April 25, 1985, petitioner filed for writ of habeas corpus in the United States District Court for the Northern District of California, alleging that he was denied his rights to cross-examine witnesses and to a fair trial. Respondent answered by asserting that petitioner had failed to exhaust his state remedies. On February 12, 1988, the case was transferred to the Eastern District of California and referred to a magistrate who found that petitioner had not exhausted his state remedies and recommended dismissal. Petitioner filed objections to the magistrate's findings and recommendations. On April 19, 1988, the district court adopted the magistrate's findings and dismissed the petition without prejudice.
On the same day that the habeas corpus petition was dismissed, petitioner filed a petition for writ of habeas corpus with the Supreme Court of California. The California Supreme Court denied the petition on July 27, 1988, while appeal was pending in this court.
We review de novo the district court's dismissal of a habeas corpus petition. Grooms v. Keeney, 826 F.2d 883, 885 (9th Cir.1987).
A petition for habeas corpus relief under 28 U.S.C. Sec. 2254 generally requires the petitioner to exhaust any available state remedies at the time he filed for federal habeas relief. Buffalo v. Sunn, 854 F.2d 1158, 1162-1163 (9th Cir.1988). An appellate court, however, may grant relief if state remedies are exhausted by the time it acts, even if the remedies were not exhausted when the habeas corpus petition was filed in the federal district court. Buffalo, 854 F.2d at 1163.
Petitioner may well have exhausted his state remedies when the California Supreme Court denied his state habeas corpus petition on July 27, 1988. It is, however, not clear from the record whether the claims raised in the state petition are the same as those asserted in the district court. Accordingly, we remand the case to the district court for a determination of whether petitioner has at this time exhausted his state administrative remedies.
REMANDED.