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Stewart v. Vasquez

filed: December 20, 1991.

JOHN RICHARD STEWART, PETITIONER-APPELLANT,
v.
DANIEL VASQUEZ, WARDEN, SAN QUENTIN PRISON, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Northern District of California. Vaughn R. Walker, District Judge, Presiding. DC No. CV-90-02421-VRW

Before: Aldisert,*fn** Goodwin, and Noonan, Circuit Judges

Order

Stewart has presented to the district court and in his brief to this court the claim that his non-force convictions, as well as force convictions, should be set aside. He takes the position that he raised this claim in his original petition and he clearly raised it in argument before the district court and before us. Even if the state did not make the objection in the district court that these claims had not been exhausted in the state court, we have discretion to dismiss the petition. Stone v. Godbehere, 894 F.2d 1131, 1135 (9th Cir. 1990). Comity and federalism will be best served by giving the state courts the opportunity to consider Stewart's unexhausted claims. Granberry v. Greer, 481 U.S. 129, 134-35 (1989); Rose v. Lundy, 455 U.S. 509 (1982).

DISMISSED FOR LACK OF JURISDICTION

Disposition

DISMISSED FOR LACK OF ...


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