Joseph Fabian Gonzales, Jr. v. Walter T. Stone, Warden

These consolidated appeals come to us from the district court’s dismissal of petitions for writ of habeas corpus. They involve an unresolved question in this circuit: Where a habeas corpus petitioner has not exhausted available state remedies with respect to all contentions raised in his federal petition, should a court decide the merits of any or all the claims? We hold that it must decline to decide any of the petition’s issues until the available state remedy for every issue is exhausted.

I

Gonzales was convicted in Los Angeles Superior Court in 1971 of first degree burglary and assault with intent to commit rape, and was sentenced to state prison. He appealed directly to the California Court of Appeal, arguing ineffective assistance of counsel and insufficient evidence to support the charge of assault with intent to commit rape. The court affirmed his conviction. His applications to the Court of Appeal and the California Supreme Court to recall the remittitur on the ground that he did not receive effective assistance of counsel at trial were also denied. He has never sought relief by writ of habeas corpus in any of the state courts.

On November 26, 1973, Gonzales filed in…