Summary
affirming summary judgment for respondent because, although petitioner alleged he had exhausted, "there is nothing in the record" to show it
Summary of this case from Wilkins v. MacomberOpinion
No. 80-3502.
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.
Appeal from the United States District Court for the District of Oregon.
OPINION
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.
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).
Affirmed.