Koenig v. Carothers, 88-4398

• Citation: 884 F.2d 1395
• Decision Date: 08 August 1989
• Docket Number: No. 88-4398,88-4398
• Parties: Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. George R. KOENIG, Petitioner-Appellant, v. DAN W. CAROTHERS, Superintendent, Lemon Creek Correctional Center, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1395

884 F.2d 1395

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

George R. KOENIG, Petitioner-Appellant, v. DAN W. CAROTHERS, Superintendent, Lemon Creek Correctional

Center, Respondent-Appellee.

No. 88-4398.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 8, 1989. ^*

Decided Aug. 30, 1989.

Before O'SCANNLAIN, LEAVY and TROTT, Circuit Judges.

MEMORANDUM ^**

George R. Koenig, convicted pursuant to a plea agreement of crimes relating to sexual abuse of minor children, appeals the denial of his petition for a writ of habeas corpus. Koenig alleges various constitutional violations pertaining to his confession, detention, interrogation, plea, and sentence. Reviewing the denial of the petition de novo, Turner v. Compoy, 827 F.2d 526, 528 (9th Cir.1988), cert. denied, 109 S.Ct. 1327 (1989), we affirm the district court's denial of Koenig's petition.

A state prisoner must either exhaust his available remedies in state court before bringing a habeas corpus petition in federal court or have a valid excuse for failing to exhaust. 28 U.S.C. Secs. 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515, 518 (1982). Exhaustion may be accomplished either by direct appeal or by postconviction proceedings. See 28 U.S.C. Secs. 2254(b), (c). The petitioner has the burden of alleging exhaustion. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir.1981), cert. denied, 455 U.S. 1023 (1982).

Koenig admits in his petition that he has raised no challenge to his sentence or conviction, either collaterally or on appeal, other than an appeal in which his sole argument was that his sentence was excessive. See State v. Andrews, 707 P.2d 900 (Alaska Ct.App.1985), aff'd, 723 P.2d 85 (Alaska 1986). Accordingly, we conclude that Koenig has made no showing of exhaustion.

A habeas corpus petitioner may be excused from the exhaustion requirement if the petitioner shows that invocation of state remedies would be futile. Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir.1981). Koenig has made no showing of futility.

In deciding this appeal, we have considered the content of two documents Koenig filed after submission of his case, i.e., "Request to Allow Filing of Late Response to State's Opposition of Habeas Corpus Relief Request by Petitioner" and ...