Can a motion to dismiss a state prisoner's habeas petition before the federal court be heard?

Our circuit has interpreted subsections (b) and (c) of 28 U.S.C. Sec. 2254, the federal habeas statute, generally to preclude federal review of a state prisoner's habeas petition unless the petitioner has exhausted available remedies in state courts, including direct appeal and collateral proceedings. Lindquist v. Gardner, 770 F.2d 876, 877 (9th Cir.1985).

We decline to deviate from our rule in this case. We base our holding on our observation that substantial progress is now being made on petitioner's state appeal. As our court noted in an analogous situation: "[w]hen ... an appeal of a state criminal conviction is pending a would-be habeas corpus petitioner must await the outcome of his appeal before his state remedies are exhausted, even where the issue to be challenged in the writ of habeas corpus has been finally settled in the state courts." Sherwood v. Tomkins, 716 F.2d, 632, 634 (9th Cir.1983). ²

Simply put, both comity and efficiency counsel that federal courts should not interfere when a pending state appeal may resolve the entire issue. Should petitioner lose his appeal and exhaust all other state remedies, he will be able then to petition the federal court for relief. For now, however, we AFFIRM the district court's holding that appellant's habeas petition must be dismissed pending exhaustion of all available state remedies. ³ See Daniels v. Nelson, 415 F.2d 323 (9th Cir.), cert. denied, 396 U.S. 994 (1969) (requiring exhaustion of state remedies before habeas writ will issue).

Because of our holding, we DENY appellee's motion to submit an appendix to the record before us.