Opinion
No. 84-1552.
Argued and Submitted April 9, 1984.
Decided April 12, 1984.
Lawrence H. Fleischman, Tucson, Ariz., Timothy K. Ford, Seattle, Wash., for petitioner-appellant.
Jack Roberts, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellees.
Appeal from the United States District Court for the District of Arizona.
Before ALARCON, POOLE and BOOCHEVER, Circuit Judges.
ORDER
Pursuant to Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), we affirm the district court's order dismissing Richmond's petition for habeas corpus because it contained unexhausted constitutional claims which had not been presented to the Arizona courts. We vacate the district court's ruling which purported to decide the merits of the petition. Szeto v. Rushen, 709 F.2d 1340 (9th Cir. 1983).
We remand to the district court with instructions to fix a reasonable time within which petitioner may, if so advised, submit an amended petition containing only claims which have been exhausted, or claims as to which petitioner may, upon hearing, show that exhaustion has been satisfied within the meaning of 28 U.S.C. § 2254(b). The district court shall thereupon hear and determine the petition according to law.
Since the date of execution fixed by the State of Arizona has now expired, we terminate the order of this court staying execution heretofore entered January 16, 1984.
AFFIRMED in part, VACATED in part, and cause REMANDED for further proceedings consistent with this order.