Stewart v. Parratt, 82-1095

• Decision Date: 13 July 1982
• Docket Number: No. 82-1095,82-1095
• Citation: 682 F.2d 757
• Parties: Rodney L. STEWART, Appellant, v. Robert F. PARRATT, Warden, Nebraska State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 757

682 F.2d 757

Rodney L. STEWART, Appellant, v.Robert F. PARRATT, Warden, Nebraska State Penitentiary, Appellee.

No. 82-1095.

United States Court of Appeals Eighth Circuit.

Submitted June 18, 1982.

Decided July 13, 1982.

Woods, Aitken, Smith, Greer, Overcash & Spangler, Lincoln, Neb., for appellant.

Paul L. Douglas, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., for the State of Neb., its agencies and its officers.

Before ROSS, Circuit Judge, and STEPHENSON and HENLEY, Senior Circuit Judges.

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(...