972 F. 2d 1339 - Gambrel v. McCormick

972 F2d 1339 Gambrel v. McCormick

972 F.2d 1339

John Ed GAMBREL, Petitioner-Appellant,
v.
Jack McCORMICK, Respondent-Appellee.

No. 91-36084.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 1992.
Decided July 17, 1992.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before ALARCON, RYMER and T.G. NELSON, Circuit Judges.

ORDER

1

The parties have conceded that the district court's order dismissing this action for failure to exhaust state remedies should be affirmed. The parties also are in agreement that the district court erred in purporting to decide the merits of this case. We agree. See Guizer v. Estelle, 843 F.2d 371, 372 (9th Cir.1988) (it is error to reach the merits of a petition that contains an unexhausted claim). In the event that the petitioner files a new petition containing the same claim after it is exhausted, the district court must consider its merits de novo.

2

AFFIRMED.