884 F. 2d 1395 - Springer v. Rh Rison

MEMORANDUM**

David Hoyle Springer, an Alaska state prisoner, appeals the district court's denial of his 28 U.S.C. Sec. 2254 habeas corpus petition. The judgment of the district court is affirmed.

* FACTS

David Hoyle Springer was convicted in Alaska state court of one count of armed robbery and one count of shooting with intent to kill, wound, or main. He received consecutive prison sentences totalling thirty five years.

Springer filed an application for post-conviction relief with the Superior Court of Alaska which was denied. Springer appealed the Superior Court's decision to the Alaska Court of Appeals. The appellate court affirmed the denial of post-conviction relief. Springer then appealed to the Supreme Court of Alaska, which also denied his petition for relief. On July 10, 1987, Springer filed this 28 U.S.C. Sec. 2254 habeas corpus petition in the United States District Court for the Central District of California. The district court dismissed Springer's petition for failure to exhaust state remedies, and Springer appeals.

This court reviews de novo the district court's denial of a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 for failure to exhaust state remedies. Turner v. Compoy, 827 F.2d 526, 528 (9th Cir.1987).

A state prisoner must exhaust all available state court remedies before a federal court may consider granting habeas corpus relief. 28 U.S.C. Sec. 2254; Duckworth v. Serrano, 454 U.S. 1, 3 (1981). An applicant must exhaust all the claims advanced in his petition in order to have any of his allegations considered by a federal court. Rose v. Lundy, 455 U.S. 509, 522 (1982). The petitioner can satisfy the exhaustion requirement by giving the highest state court a "fair opportunity" to consider each of his claims before he presents it to the federal habeas court. Picard v. Connor, 404 U.S. 270, 276 (1971).

Springer's petition to the Supreme Court of Alaska raised the following claims: (1) violation of his right to a speedy trial pursuant of Alaska R.Crim.P. 45; (2) ineffective assistance of counsel; and (3) violation of his sixth and fourteenth amendment rights to equal protection. This petition was denied.

Springer's federal habeas petition asserts the following grounds for relief: (1) violation of his sixth amendment right to a speedy trial; and (2) ineffective assistance of trial counsel.

While Springer's claims to the Alaska Court of Appeals raised these issues, his petition to the supreme court did not. We find that a claimed violation of Alaska R.Civ.P. 45 is not the same as a claim for violation of the speedy trial clause of the sixth amendment. There exists a balancing test for determining when the sixth amendment's speedy trial clause is violated, See Barker v. Wingo, 407 U.S. 514, 530 (1972), while the Alaska rule is merely a mechanical time limit of 120 days. The Supreme Court of Alaska was not given an opportunity to address Springer's sixth amendment speedy trial claim, therefore his state remedies were not exhausted.

As we find that the sixth amendment speedy trial claim is unexhausted, we must dismiss the entire habeas corpus petition. Rose v. Lundy, 455 U.S. at 510 (Where exhausted claims are combined with unexhausted claims the entire petition must be dismissed). Therefore we do not address petitioner's remaining claims.

The order of the district court dismissing Springer's habeas corpus petition is AFFIRMED.