McKenzie v. Nelson

Full title: Richard L. MCKENZIE, Petitioner-Appellant, v. Philip NELSON, Judge; David…

Court: United States Court of Appeals, Ninth Circuit

Date published: Mar 19, 1999

173 F.3d 861 (9th Cir. 1999)

Opinion

173 F.3d 861 (9th Cir. 1999) Richard L. MCKENZIE, Petitioner-Appellant, v. Philip NELSON, Judge; David W. Hantkea, Judge; William Porter, Tillamook County Dist. Attorney, Respondents-Appellees. No. 95-35606. No. CV-95-06058-MRH United States Court of Appeals, Ninth Circuit March 19, 1999

Submitted March 15, 1999 ²

2 The panel unanimously finds this case suitable for decision without oral argument pursuant to Fed. R.App. P. 34(a)(2).

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court for the District of Oregon Michael Hogan, District Judge, Presiding.

Before SNEED, KOZINSKI and LEAVY, Circuit Judges.

MEMORANDUM ¹

1 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

Oregon state prisoner Richard Leon McKenzie appeals pro se the district court's summary denial of his 28 U.S.C. § 2254 habeas petition, challenging the lawfulness of the indictment underlying his conviction. The district court dismissed due to McKenzie's failure to exhaust available state remedies, and we now affirm.

Petitioner must exhaust all available state court remedies before the federal courts may consider his habeas petition. See 28 U.S.C. § 2254(d); Keeney v. Tamayo-Reyes, 504 U.S. 1, 9-10 (1992). The claims petitioner advances here are properly raised on direct review in Oregon courts or in a petition for state post-conviction relief under O.R.S. 138.510 et seq. It is apparent from the face of the petition that McKenzie has failed to do so. Indeed, at the time the petition was filed, the state trial court had not even sentenced petitioner. McKenzie also failed to show cause why his petition for writ of habeas corpus should not be dismissed for failure to exhaust available state remedies.

The order and judgment of the district court are therefore

AFFIRMED.