Rodney L. Stewart v. Robert F. Parratt, Warden, Nebraska State Penitentiary, 682 F.2d 757

ORDER

Due to the presence of exhausted and unexhausted claims in the original petition for a writ of habeas corpus, we have asked the parties to address the applicability to this case of Rose v. Lundy, - U.S. -, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Both parties have indicated to this court that a remand is necessary for the purpose of allowing the district court to consider this case in light of Rose v. Lundy. We, therefore, order such a remand.

We believe the petitioner should make the choice whether to amend his petition and delete the unexhausted claims or to proceed in state court on the unexhausted claims. We believe this choice should be made in the first instance, because of the possible ramifications of such a choice under Rule 9(b) of 28 U.S.C. § 2254 as addressed in the plurality’s opinion in Rose v. Lundy. If petitioner does choose to amend his petition to delete the unexhausted claims, then, as requested by the state, we will allow this case to proceed upon appeal on the present record and briefs.

Case Details

Case Name: Rodney L. Stewart v. Robert F. Parratt, Warden, Nebraska State Penitentiary

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 13, 1982

Citations: 682 F.2d 757; 1982 U.S. App. LEXIS 17498; 82-1095

Docket Number: 82-1095

Court Abbreviation: 8th Cir.