David Dean Delker v. Manfred F. Maass, Superintendent, Oregon State Penitentiary

78 F.3d 592 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. David Dean DELKER, Petitioner-Appellant, v. Manfred F. MAASS, Superintendent, Oregon State Penitentiary, Respondent-Appellee. No. 95-35723. United States Court of Appeals, Ninth Circuit. Submitted Feb. 27, 1996. * Decided March 5, 1996. Before: PREGERSON, CANBY, and HAWKINS, Circuit Judges. 1 MEMORANDUM ** 2 David Dean Delker, an Oregon state prisoner, appeals the dismissal of his 28 U.S.C. § 2254 habeas petition for failure to exhaust state remedies. The district court correctly dismissed the petition on the ground that even though Delker alleged he had presented his claim to the Oregon Supreme Court on direct appeal, his subsequent post-conviction petition raising the same claim still was pending before Oregon Court of Appeals. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir.1983) (even though petitioner had presented claim regarding appointment of counsel on direct appeal to highest state court, state…