Glenn Ruphert Gibson v. James Spalding, Slade Gorton and Dixie Lee Ray

Spalding, et al., appealed from an order of the district court granting a writ of habeas corpus to Gibson pursuant to 28 U.S.C. § 2254 . We affirmed. 665 F.2d 863 (9th Cir.1981). The Supreme Court, 456 U.S. 968 , 102 S.Ct. 2229 , 72 L.Ed.2d 842 (1982), vacated our opinion and remanded for reconsideration in light of Engle v. Isaac, 456 U.S. 107 , 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982), and United States v. Frady, 456 U.S. 152 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982). We remand to the district court to do so in the first instance.

In addition, subsequent to our initial decision, the Court decided Rose v. Lundy, 455 U.S. 509 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982), which requires a federal district court to dismiss a habeas corpus petition challenging state proceedings if it contains any claim unexhausted in the state court. In the appeal of the grant of Gibson’s petition to this court, Gibson raised a separate claim charging a deprivation of his sixth amendment right to effective counsel. As outlined in the facts stated in our prior decision, Gibson argues that his attorney on appeal failed to raise an objection to a jury instruction despite the fact that Mullaney v. Wilbur, 421…