Olson v. McKune

Petitioner, Carrol Richard Olson, appeals the dismissal of his petition for writ of habeas corpus, filed pursuant to 28 U.S.C. Sec. 2254. The district court dismissed the petition for failure to exhaust state remedies for nine of the more than twenty claims. On appeal, petitioner argues that all claims raised in the petition have been exhausted in state court. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm.1

"[A] state prisoner bringing a federal habeas corpus action bears the burden of showing that he has exhausted available state remedies...." Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.) (citing Clonce v. Presley, 640 F.2d 271, 273 (10th Cir.1981)), cert. denied, --- U.S. ----, 113 S.Ct. 347, 121 L.Ed.2d 262 (1992). Petitioner has not met that burden. Without specifying how each claim has been exhausted, petitioner simply states in his petition that he has exhausted all state remedies in state court. Petitioner makes the same blanket representation in response to respondents' nonexhaustion defense and, again in his appellate brief. From our review of the record it appears that Olson may have exhausted six of the nine claims which the district court identified as unexhausted. At least three claims, however, do not appear to have been exhausted. Therefore the district court properly dismissed the petition. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982).

We GRANT petitioner's motion to proceed in forma pauperis and his application for a certificate of probable cause. The judgment of the United States District Court for the District of Kansas is AFFIRMED.