Rick P. Miller v. Arnold Jago , 865 F.2d 259 ( 1988 )

865 F.2d 259

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Rick P. MILLER, Petitioner-Appellant,
v.
Arnold JAGO, Respondent-Appellee.

No. 88-3300.

United States Court of Appeals, Sixth Circuit.

Dec. 8, 1988.

Before KRUPANSKY and RYAN, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.

ORDER

1

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

Rick P. Miller, through counsel, appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254.

3

Miller was convicted in Ohio courts of aggravated murder following a jury trial, and was sentenced to life imprisonment. The issues raised in the habeas petition were insufficiency of the evidence and ineffective assistance of counsel. The district court found the former claim without merit, and determined that the latter claim had been waived due to Miller's failure to present this issue to the state courts, and the lack of any showing of cause for the failure to exhaust state remedies, or prejudice as a result. Petitioner has abandoned the claim of insufficient evidence in this court, but reasserts his sixth amendment claim, arguing that ineffective assistance on appeal constitutes cause for his procedural default.

4

Upon consideration, we agree with the district court's finding that Miller did not raise the issue of ineffective assistance of counsel on his direct appeal, and is therefore barred under Ohio law from raising it in a post-conviction proceeding. State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104 (1967). Thus, he has waived the right to raise this issue in a federal habeas corpus action absent a showing of cause and prejudice. United States v. Frady, 456 U.S. 152, 167-68 (1982). Moreover, we conclude that, as Miller did not argue cause or prejudice before the district court, this court need not consider the argument he attempts to raise on appeal. See Cohoon v. Rees, 820 F.2d 784, 786-87 (6th Cir.1987) (per curiam).

5

Accordingly, the district court's judgment is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.