Summary
holding that a petitioner may "make the federal basis of claim explicit either by citing federal law or the decisions of federal courts"
Summary of this case from Oliphant v. Mendoza-PowersOpinion
No. 99-17351.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed November 13, 2000. Amended April 25, 2001.
Danice Arbor Johnson, Assistant Federal Public Defender, Las Vegas, Nevada, for the petitioner-appellant.
Dorothy Nash Holmes, Deputy Attorney General, Carson City, Nevada, for the respondent-appellee.
Appeal from the United States District Court for the District of Nevada; Edward C. Reed, Jr., District Judge, Presiding. D.C. No. CV-98-00455-ECR.
Before: O'SCANNLAIN, LEAVY, and GOULD, Circuit Judges.
ORDER
The opinion filed November 13, 2000 [ 232 F.3d 666], is hereby ordered amended as follows:
Slip Op. at 14430: Delete "AFFIRMED" and add the following new paragraphs to the end of the opinion:
"Nevertheless, because Lyons's habeas petition included a number of exhausted claims which the district court dismissed without prejudice at Lyons's request, we remand this action to the district court to provide Lyons with the opportunity to proceed on such exhausted claims only.
AFFIRMED and REMANDED."
Except as herein modified, the panel has voted unanimously to deny the Petition for Rehearing. Judge Gould and Judge O'Scannlain have voted to reject the Suggestion for Rehearing En Banc and Judge Leavy so recommends.
The full court was advised of the Suggestion for Rehearing En Banc. A judge of this court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration.
The Petition and the Suggestion are thus DENIED.
The mandate shall issue forthwith.