650 F2d 1103 Cartwright v. C Cupp

650 F.2d 1103

Dennis Lee CARTWRIGHT, Plaintiff-Appellant,
Hoyt C. CUPP, Superintendent, Oregon State Penitentiary,

No. 80-3502.

United States Court of Appeals,
Ninth Circuit.

Submitted June 11, 1981.
Decided July 13, 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.

Before GOODWIN and SNEED, Circuit Judges, and Halbert,* District Judge.



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).




The Honorable Sherrill Halbert, Senior United States District Judge for the Eastern District of California, sitting by designation