Larry L. Wilson v. Steve Berry , 98 F.3d 1343 ( 1996 )

98 F.3d 1343

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Larry L. WILSON, Petitioner-Appellant,
v.
Steve BERRY, Respondent-Appellee.

No. 95-6564.

United States Court of Appeals, Sixth Circuit.

Sept. 30, 1996.

1

Before: MARTIN and CONTIE, Circuit Judges; CARR, District Judge.*

ORDER

2

Larry L. Wilson, a pro se Kentucky prisoner, appeals a district court judgment dismissing, without prejudice, his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

In 1993, a jury convicted Wilson of raping a twelve year old girl, and he was sentenced to eight years of imprisonment. Wilson's direct appeal was still pending in the Kentucky Court of Appeals at the time he filed his habeas petition.

4

Subsequent to the filing of his direct appeal, Wilson also filed a Ky.R.Crim.P. 11.42 motion in the Fayette Circuit Court, arguing that his trial counsel had rendered ineffective assistance. The Fayette Circuit Court denied petitioner's 11.42 motion on the merits. Thereafter, the Kentucky Court of Appeals held Wilson's appeal of the denial of his Rule 11.42 motion in abeyance pending a decision on the direct appeal of his conviction.

5

In his § 2254 petition, Wilson argued that counsel rendered ineffective assistance. Upon review, a magistrate judge filed a report recommending that the district court dismiss the petition for failure to exhaust available state court remedies. Over Wilson's objections, the district court adopted the magistrate judge's recommendation and dismissed the petition without prejudice.

6

Wilson has filed a timely appeal, reasserting his same claim. The appellee has submitted a letter to the court indicating that it will not be filing a brief.

7

Upon review, we conclude that the district court properly dismissed Wilson's petition for a writ of habeas corpus for the reasons stated in its memorandum opinion filed April 17, 1995. A review of the record reflects that Wilson had not exhausted available state court remedies when he filed his habeas petition. See 28 U.S.C. § 2254(b), (c); Hannah v. Conley, 49 F.3d 1193, 1196 (6th Cir.1995) (per curiam).

8

Accordingly, we hereby affirm the district court's judgment. Rule 9(b)(3), Rules of the Sixth Circuit.

*

The Honorable James G. Carr, United States District Judge for the Northern District of Ohio, sitting by designation