Opinion
No. 89-35210.
Order February 21, 1991.
February 27, 1991.
Al Lyon, Mestel Muenster, Everett, Wash., Robert Gombiner, Nance, Iaria Gombiner, Seattle, Wash., for petitioner-appellant.
Charles R. Campbell, Monroe, Wash., in pro per.
Paul D. Weisser, Asst. Atty. Gen., Olympia, Wash., John M. Jones, Asst. Atty. Gen., Corrections Div., Olympia, Wash., for respondents-appellees.
Appeal from the United States District Court for the Western District of Washington.
Before HUG, POOLE and HALL, Circuit Judges.
ORDER
The order filed February 21, 1991 is ordered published.
ORDER
The court has under submission an appeal on behalf of Charles Rodman Campbell from the order of the United States District Court for the Western District of Washington denying his petition for habeas corpus.
On January 23, 1990, petitioner filed a motion to withdraw from submission three of the issues tendered by him therein, the withdrawal to be "without prejudice" to petitioner's right to pursue his requests to this court for habeas corpus relief. Although represented by counsel, petitioner has moved to dismiss the counsel representing him before this court and to allow him to proceed pro se, but also to have new counsel appointed. That motion also is under submission.
We have been advised that petitioner filed a personal restraint petition in the Supreme Court of Washington at No. 57406-5 of the records of that court; that his request to that court for appointment of counsel was granted on August 2, 1990; and that Michael P. Iaria, Esquire, was appointed to be counsel for petitioner in that petition. We are further informed that on August 2, 1990, the Supreme Court of Washington established a briefing schedule concerning the issues tendered by the personal restraint petition and set a hearing date thereon for February 5, 1991.
This court has not been advised by counsel for the State of Washington, by counsel appointed to represent petitioner on his personal restraint petition, or by Messrs. Al Lyon and Robert Gombiner, who are counsel of record on behalf of petitioner-appellant on the appeal pending before us, as to the current status of the proceedings in the Washington Supreme Court. The court understands, however, that the personal restraint issues were argued on or about February 5, 1991 and were taken under submission.
This court is most intent that all issues raised by the petitioner be ruled upon by the Washington Supreme Court prior to any ruling by this court. It is essential that we avoid piecemeal litigation of these issues. The fact that the Washington Supreme Court has appointed new counsel and held an additional en banc hearing on three issues causes concern that the application for a writ of habeas corpus in the Federal District Court contained issues not exhausted in the Washington State Courts and, thus, may require dismissal pursuant to Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
Counsel of record for the appellant and for appellees in the case before us are hereby requested to advise this court within 10 days of the current status of the proceedings pending in the Washington Supreme Court, and of any orders made therein or of any other developments which might probably affect the continued vitality of the appeal still pending before us. Additional briefing by counsel may be required depending upon the responses received. Submission of this case is withdrawn pending the responses of counsel and the subsequent determination of whether further briefing is required.