Vance Nilsen v. Robert G. Borg, Warden

41 F.3d 1513 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Vance NILSEN, Petitioner-Appellant, v. Robert G. BORG, Warden, Respondent-Appellee. No. 94-15145. United States Court of Appeals, Ninth Circuit. Submitted Nov. 15, 1994. * Decided Nov. 18, 1994. Before: LAY, ** PREGERSON, and O'SCANNLAIN, Circuit Judges. 1 MEMORANDUM *** 2 Appellant Vance Nilsen, a California state prisoner, appeals the district court's denial of his 28 U.S.C. Sec. 2254 habeas corpus petition. 1 We affirm. 3 * We must first address the state's claim that Nilsen has failed to exhaust his state court remedies. 4 A state prisoner must exhaust his state court remedies before seeking habeas relief in federal court. Picard v. Connor, 404 U.S. 270, 275 (1971); Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir.1986). In the instant case, however, the fact that Nilsen's claim may be unexhausted does not preclude us from resolving it. If the state fails to raise exhaustion as a defense in the proceedings…