27 F. App'x 824

James Ricky WATSON, Petitioner-Appellant, v. Robert O. LAMPERT, Superintendent, Respondent-Appellee.

No. 01-35051.

D.C. No. CV-99-00742-AA.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 5, 2001.*

Decided Nov. 15, 2001.

Before KLEINFELD, McKEOWN and FISHER, Circuit Judges.

MEMORANDUM **

James Ricky Watson, an Oregon state prisoner, appeals the denial of his 28 U.S.C. § 2254 petition for lack of exhaustion under 28 U.S.C. § 2254(b) and (c). We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the district court’s dismissal of Watson’s habeas petition, see Dows v. Wood, 211 F.3d 480, 484 (9th Cir.), cert. denied, 531 U.S. 908, 121 S.Ct. 254, 148 L.Ed.2d 183 (2000), and we affirm.

Watson contends the district court erred in dismissing his habeas petition because he met the exhaustion requirement by presenting his claims in “one full round of state court appellate review.” See O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). This contention fails because at the time he filed his § 2254 petition, Watson still had a direct appeal pending in the Oregon Court of Appeals.1 Sherwood v. Tomkins, 716 *825F.2d 632, 634 (9th Cir.1983) (requiring petitioner to await outcome of pending appeal before state remedies are exhausted, because that appeal may result in reversal of conviction on some other ground, thereby mooting federal question); see Brown v. Maass, 11 F.3d 914, 915 (9th Cir.1993) (per curiam) (assessing exhaustion at time of filing petition); Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir.1982) (setting forth requirements for exhaustion). The district court therefore properly dismissed the petition without prejudice for failure to exhaust. O’Sullivan v. Boerckel, 526 U.S. at 842.2

AFFIRMED.

Watson v. Lampert
27 F. App'x 824

Case Details

Name
Watson v. Lampert
Decision Date
Nov 15, 2001
Citations

27 F. App'x 824

Jurisdiction
United States

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