Opinion · Court of Appeals for the Eighth Circuit

Rodney L. Stewart v. Robert F. Parratt, Warden, Nebraska State Penitentiary

682 F.2d 757

Type: Opinion
Court: Court of Appeals for the Eighth Circuit
Jurisdiction: Federal
Date: 1982-07-13
Topic: bankruptcy

ORDER Due to the presence of exhausted and unexhausted claims in the original petition for a writ of habeas corpus, we have asked the parties to address the applicability to this case of Rose v. Lundy, - U.S. -, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Both parties have indicated to this court that a remand is necessary for the purpose of allowing the district court to consider this case in light of Rose v. Lundy. We, therefore, order such a remand.

Citator

UpLaw has not yet analyzed Rodney L. Stewart v. Robert F. Parratt, Warden, Nebraska State Penitentiary. The absence of a flag is not a finding that it is good law.

Cited by: 16 opinions

STEWART v. PARRATT,682 F.2d 757(8th Cir. 1982)

RODNEY L. STEWART, APPELLANT, v. ROBERT F. PARRATT, WARDEN, NEBRASKA STATE

PENITENTIARY, APPELLEE.

No. 82-1095.

United States Court of Appeals, Eighth Circuit.

Submitted June 18, 1982.

Decided July 13, 1982.

Page 758

Woods, Aitken, Smith, Greer, Overcash Spangler, Lincoln, Neb., for appellant.

Paul L. Douglas, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., for the State of Neb., its agencies and its officers.

Appeal from the United States District Court for the District of Nebraska.

Before ROSS, Circuit Judge, and STEPHENSON and HENLEY, Senior Circuit Judges.

[1] ORDER

[2] Due to the presence of exhausted and unexhausted claims in the original petition for a writ of habeas corpus, we have asked the parties to address the applicability to this case ofRose v.Lundy,___ U.S. ___,102 S.Ct. 1198,71 L.Ed.2d 379(1982). Both parties have indicated to this court that a remand is necessary for the purpose of allowing the district court to consider this case in light ofRose v. Lundy.We, therefore, order such a remand.

[3] We believe the petitioner should make the choice whether to amend his petition and delete the unexhausted claims or to proceed in state court on the unexhausted claims. We believe this choice should be made in the first instance, because of the possible ramifications of such a choice under Rule 9(b) of28 U.S.C. § 2254as addressed in the plurality's opinion inRose v.Lundy.If petitioner does choose to amend his petition to delete the unexhausted claims, then, as requested by the state, we will allow this case to proceed upon appeal on the present record and briefs.