Opinion · Court of Appeals for the Ninth Circuit

Dennis Lee Cartwright v. Hoyt C. Cupp, Superintendent, Oregon State Penitentiary

650 F.2d 1103

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1981-07-13
Topic
litigation

noting that 2 a district court can dismiss a habeas corpus petition for failure to exhaust | affirming summary judgment for respondent because, although petitioner alleged he had 26 exhausted, “there is nothing in the record” to show it | finding 15 district court should have dismissed habeas petition for failure to exhaust when “there is nothing 16 in the record to show that he sought review in the Oregon Supreme Court” | “In habeas corpus cases . . . federal courts may consider sua sponte whether the defendant has exhausted state remedies . . . .” | “In habeas corpus cases . . . federal courts may consider sua sponte whether the defendant has exhausted state remedies . . . .” | petitioner bears burden of showing he has 18 exhausted state remedies

Citator

Cited by
40 opinions
CARTWRIGHT v. CUPP,650 F.2d 1103(9th Cir. 1981)
DENNIS LEE CARTWRIGHT, PLAINTIFF-APPELLANT, v. HOYT C. CUPP, SUPERINTENDENT,
OREGON STATE PENITENTIARY, DEFENDANT-APPELLEE.
No. 80-3502.
United States Court of Appeals, Ninth Circuit.
Submitted June 11, 1981.
Decided July 13, 1981.
Rehearing Denied August 6, 1981.
Dennis Lee Cartwright, pro se.

Rudolph S. Westerband, Asst. U.S. Atty., Salem, Or., for defendant-appellee.
[1] OPINION
Appeal from the United States District Court for the District of Oregon.
Before GOODWIN and SNEED, Circuit Judges, and Halbert,fn*District Judge.
PER CURIAM.
[2] Dennis Lee Cartwright pled guilty to murder and was sentenced to life imprisonment. After being denied an early parole, he commenced state post-conviction proceedings alleging constitutional defects in his guilty plea.Page 1104

[3] After taking his state court remedies to the intermediate appellate level without success, he brought federal habeas corpus proceedings and now appeals a summary judgment in favor of the state. While Cartwright alleges that he has exhausted his state court remedies, there is nothing in the record to show that he sought review in the Oregon Supreme Court. He recites only that he appealed to the Oregon Court of Appeals. The district court should have dismissed the petition for failure to exhaust.28 U.S.C. § 2254(b).See Carothers v. Rhay,594 F.2d 225, 228 (9th Cir. 1979);Williams v. Nelson,431 F.2d 932(9th Cir. 1970).

[4] Affirmed.
  1. The Honorable Sherrill Halbert, Senior United States District Judge for the Eastern District of California, sitting by designation. ↩