951 F.2d 362
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
John Richard STEWART, Petitioner-Appellant,
v.
Daniel VASQUEZ, Warden, San Quentin Prison, Respondent-Appellee.
No. 91-15623.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 10, 1991.
Decided Dec. 20, 1991.
Before ALDISERT*, GOODWIN and NOONAN, Circuit Judges,
ORDER**
Stewart has presented to the district court and in his brief to this court the claim that his non-force convictions, as well as force convictions, should be set aside. He takes the position that he raised this claim in his original petition and he clearly raised it in argument before the district court and before us. Even if the state did not make the objection in the district court that these claims had not been exhausted in the state court, we have discretion to dismiss the petition. Stone v. Godbehere, 894 F.2d 1131, 1135 (9th Cir.1990). Comity and federalism will be best served by giving the state courts the opportunity to consider Stewart's unexhausted claims. Granberry v. Greer, 481 U.S. 129, 134-35 (1989); Rose v. Lundy, 455 U.S. 509 (1982).
DISMISSED FOR LACK OF JURISDICTION.