942 F. 2d 794 - Thomas v. H Rison
942 F2d 794 Thomas v. H Rison
942 F.2d 794
Lemrick THOMAS, Petitioner-Appellant,
v.
Richard H. RISON, Respondent-Appellee.
No. 90-56163.
United States Court of Appeals, Ninth Circuit.
Submitted July 12, 1991.*
Decided Aug. 21, 1991.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
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Before REINHARDT and FERNANDEZ, Circuit Judges, and CROCKER,** District Judge.
MEMORANDUM***
Thomas appeals from an order dismissing his petition for writ of habeas corpus for failure to exhaust his state remedies under 28 U.S.C. § 2254(b). Thomas is in custody pursuant to a state court judgment: he was convicted of murder in the Court of Common Pleas of Philadelphia County, Trials Division, Pennsylvania. After being transferred to an out of state federal prison, Thomas challenged the legality of his confinement by way of petition for writ of habeas corpus, invoking 28 U.S.C. § 2241 jurisdiction. Since he had previously filed a claim under state post-conviction proceedings, which was still pending, the district court dismissed.
Thomas, as a prisoner in custody, qualifies under the general federal habeas jurisdictional statute, 28 U.S.C. § 2241. However, because his conviction is pursuant to a state court judgment, he must exhaust his state remedies before we can consider his petition on the merits. 18 U.S.C. § 2254(b) specifically so provides. See Tinsley v. Borg, 895 F.2d 520, 522 (9th Cir.1990). Accordingly, the district court was correct in dismissing the action.
AFFIRMED.
The panel unanimously finds this case suitable for disposition without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 343(a)
Honorable Myron D. Crocker, United States District Judge, Eastern District of California, sitting by designation
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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3