George R. Shook v. Harold Clarke, 894 F.2d 1496 (8th Cir. 1990). · Go Syfert
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George R. Shook v. Harold Clarke, 894 F.2d 1496 (8th Cir. 1990). Cases Citing This Book View Copy Cite
9 citation events across 1 distinct court.
Strongest positive: Clarence Victor v. Frank X. Hopkins (ca8, 1996-10-01)
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited as authority (rule) Clarence Victor v. Frank X. Hopkins
8th Cir. · 1996 · confidence medium
See, e.g., Williams v. Groose, 77 F.3d 259, 262 (8th Cir.1996); Mellott v. Purkett, 63 F.3d 781, 784-85 (8th Cir.1995); Ashker v. Leapley, 5 F.3d 1178, 1179-80 (8th Cir.1993); Gray v. Hopkins, 986 F.2d 1236, 1237 (8th Cir.) (per curiam), cert. denied, 510 U.S. 839 , 114 S.Ct. 122 , 126 L.Ed.2d 86 (1993); Shook v. Clarke, 894 F.2d 1496, 1497 (8th Cir.1990) (modifying order of dismissal so that dismissal would be without prejudice); Nottlemann v. Welding, 861 F.2d 1087, 1088-89 (8th Cir.1988) (per curiam); Irwin v. Minnesota, 829 F.2d 690, 691 (8th Cir.1987) (per curiam); Snethen v. Nix, 736 F.2…
discussed Cited as authority (rule) Clarence Victor v. Frank X. Hopkins
8th Cir. · 1996 · confidence medium
See, e.g., Williams v. Groose, 77 F.3d 259, 262 (8th Cir. 1996); Mellott v. Purkett, 63 F.3d 781, 784-85 (8th Cir. 1995); Ashker v. Leapley, 5 F.3d 1178, 1179-80 (8th Cir. 1993); Gray v. Hopkins, 986 F.2d 1236, 1237 (8th Cir.) (per curiam), cert. denied, 114 S. Ct. 112 (1993); Shook v. Clarke, 894 F.2d 1496, 1497 (8th Cir. 1990) (modifying order of dismissal so that dismissal would be without prejudice); Nottlemann v. Welding, 861 F.2d 1087, 1088-89 (8th Cir. 1988) (per curiam); Irwin v. Minnesota, 829 F.2d 690, 691 (8th Cir. 1987) (per curiam); Snethen v. Nix, 736 F.2d 1241, 1244, 1246 (8th C…
discussed Cited as authority (rule) Lloyd Eugene Schlup v. Bill Armontrout, Warden (2×)
8th Cir. · 1991 · confidence medium
See Simmons v. Lockhart, 915 F.2d 372, 376 (8th Cir.1990); Shook v. Clarke, 894 F.2d 1496, 1497 (8th Cir.1990); Shaddy v. Clarke, 890 F.2d 1016 , 1018-19 & n. 4 (8th Cir.1989); Harper v. Nix, 867 F.2d 455, 457 (8th Cir.), cert. denied, 491 U.S. 908 , 109 S.Ct. 3194 , 105 L.Ed.2d 702 (1989).
cited Cited as authority (rule) Antonio Evans v. Denis Dowd
8th Cir. · 1991 · confidence medium
See, e.g., Simmons v. Lockhart, 915 F.2d 372, 376 (8th Cir.1990); Shook v. Clarke, 894 F.2d 1496, 1497 (8th Cir.1990).
examined Cited "see, e.g." Martsay Bolder, Appellee/cross-Appellant v. Bill Armontrout, Appellant/cross-Appellee (4×)
8th Cir. · 1990 · signal: see also · confidence medium
See also Shook v. Clarke, 894 F.2d 1496, 1497 (8th Cir.1990); Shaddy v. Clarke, 890 F.2d 1016 , 1018 n. 4 (8th Cir.1989); Stokes v. Armontrout, 851 F.2d 1085 , 1092 n. 8 (8th Cir.1988), cert. denied, 488 U.S. 1019 , 109 S.Ct. 823 , 102 L.Ed.2d 812 (1989). 10 30 The district court simply assumed that post-conviction counsel was ineffective because she did not present factual support for the claim that Ossman had failed to investigate Bolder's background.
Retrieving the full opinion text from the archive…
George R. SHOOK, Appellant,
v.
Harold CLARKE, Appellee
89-1104.
Court of Appeals for the Eighth Circuit.
Feb 7, 1990.
894 F.2d 1496
Robert R. Steinke, Columbus, Neb., for appellant., Lynne Rae Fritz, Lincoln, Neb., for ap-pellee.
Beam, Fagg, Heaney.
Cited by 8 opinions  |  Published
FAGG, Circuit Judge.

George R. Shook appeals the district court's dismissal of his petition for writ of habeas corpus. We affirm.

Shook asserted three constitutional grounds for relief in his habeas petition. The Nebraska Supreme Court had ruled on one of Shook's habeas claims and the district court rejected this claim on the merits. Shook presented his other habeas claims in a state postconviction action. Shook's counsel, however, failed to raise these claims on appeal of the postconviction proceeding to the Nebraska Supreme Court. Despite Shook's contention that postconviction counsel was constitutionally ineffective, the district court concluded Shook's claims were barred by his failure to show cause for the procedural default. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Although we affirm the district court's dismissal of Shook's petition, we do so for a different reason.

In our view, the district court prematurely considered the issue of Shook's procedural default. Before Shook may make a Wainwright showing in federal district court to excuse his procedural default, Shook must exhaust available state remedies on his claim that postconviction counsel was ineffective. Shaddy v. Clarke, 890 F.2d 1016, 1018-19 (8th Cir.1989). Ineffective assistance of counsel during postconviction proceedings "can constitute cause under Wainwright thus avoiding the procedural bar." Id. at 1018 n. 4.

The Nebraska Supreme Court recognizes ineffective assistance of postcon-viction counsel as a ground for a second postconviction proceeding. State v. Meis, 233 Neb. 355, 445 N.W.2d 610, 613 (1989); see also Shaddy, 890 F.2d at 1019. Thus, Shook's failure to present his ineffective assistance of counsel claim under the Nebraska postconviction act when a second proceeding is available to him is a failure to exhaust remedies within the meaning of the federal habeas corpus statute. Harrod v. Black, 818 F.2d 17, 18 (8th Cir.1987); 28 U.S.C. § 2254(b), (c) (1982).

Because Shook presented a state ha-beas petition containing both exhausted and unexhausted claims to the district court, the court properly dismissed Shook's petition. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). The dismissal should be without prejudice, however.

As modified, we affirm the judgment of the district court.