Summary
remanding case to district court to reconsider in light of Rose v. Lundy
Summary of this case from Graham v. SolemOpinion
No. 82-1095.
Submitted June 18, 1982.
Decided July 13, 1982.
Woods, Aitken, Smith, Greer, Overcash Spangler, Lincoln, Neb., for appellant.
Paul L. Douglas, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., for the State of Neb., its agencies and its officers.
Appeal from the United States District Court for the District of Nebraska.
Before ROSS, Circuit Judge, and STEPHENSON and HENLEY, Senior Circuit Judges.
ORDER
Due to the presence of exhausted and unexhausted claims in the original petition for a writ of habeas corpus, we have asked the parties to address the applicability to this case of Rose v. Lundy, ___ U.S. ___, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Both parties have indicated to this court that a remand is necessary for the purpose of allowing the district court to consider this case in light of Rose v. Lundy. We, therefore, order such a remand.
We believe the petitioner should make the choice whether to amend his petition and delete the unexhausted claims or to proceed in state court on the unexhausted claims. We believe this choice should be made in the first instance, because of the possible ramifications of such a choice under Rule 9(b) of 28 U.S.C. § 2254 as addressed in the plurality's opinion in Rose v. Lundy. If petitioner does choose to amend his petition to delete the unexhausted claims, then, as requested by the state, we will allow this case to proceed upon appeal on the present record and briefs.