Michael A. Nolt v. George Herman, Complex Warden , 21 F.3d 1115 ( 1994 )

21 F.3d 1115

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Michael A. NOLT, Petitioner-Appellant,
v.
George HERMAN, Complex Warden, Respondent-Appellee.

No. 93-15613.

United States Court of Appeals, Ninth Circuit.

Submitted April 20, 1994.*
Decided April 22, 1994.

Before: POOLE, BEEZER, and T.G. NELSON, Circuit Judges.

1

MEMORANDUM**

2

Michael A. Nolt, an Arizona state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. Sec. 2254 habeas petition for failure to exhaust state remedies. We have jurisdiction under 28 U.S.C. Sec. 2253. We review de novo, Henry v. Estelle, 993 F.2d 1423, 1425 (9th Cir.1993), and affirm.

3

A state prisoner must exhaust all available state court remedies before a federal court may consider the merits of his habeas corpus petition. 28 U.S.C. Sec. 2254(b); Henry, 993 F.2d at 1425. To satisfy the exhaustion requirement, a state prisoner must provide the highest state court with a full and fair opportunity to consider all of his or her claims. Anderson v. Harless, 459 U.S. 4, 6 (1982); Henry, 993 F.2d at 1425. A federal claim is fairly presented if the petitioner has described the operative facts and legal theory upon which the claim is based. Henry, 993 F.2d at 1425.

4

Here, Nolt concedes that he has never presented his claims to the Arizona Supreme Court. Nolt contends, however, that exhaustion of state remedies is unnecessary because he is complaining about the state of Arizona itself, and that therefore, the Arizona courts cannot be neutral and detached in considering his claims. This contention lacks merit. Nolt has not shown that state remedies are unavailable or ineffective. See e.g., Kim v. Villalobos, 799 F.2d 1317, 1321 (9th Cir.1986) (excusing exhaustion where state procedural requirements prevented fairly presented claim from being heard on merits). Accordingly, the district court properly dismissed the petition without prejudice for failure to exhaust state remedies. See 28 U.S.C. Sec. 2254(b); Henry, 993 F.2d at 1425.

5

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Nolt's request for oral argument is denied

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3