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Daniel Preston Rucker v. Attorney General for the State of Tennessee James H. Rose , 762 F.2d 1011 ( 1985 )


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  • 762 F.2d 1011

    Unpublished Disposition
    NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
    DANIEL PRESTON RUCKER, PETITIONER-APPELLANT,
    v.
    ATTORNEY GENERAL FOR THE STATE OF TENNESSEE; JAMES H. ROSE,
    RESPONDENTS-APPELLEES.

    NO. 83-5163

    United States Court of Appeals, Sixth Circuit.

    3/27/85

    ORDER

    1

    BEFORE: KEITH and MARTIN, Circuit Judges; and TAYLOR, District Judge.*

    2

    Petitioner appeals the district court's order dismissing his habeas corpus petition brought under 28 U.S.C. Sec. 2254. The case has been referred to a panel of the Court pursuant to Sixth Circuit Rule 9(a). Upon examination of petitioner's brief and record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

    3

    Petitioner sought habeas corpus relief on the grounds that the Tennessee Board of Pardons and Paroles 'illegally' paroled him in 1981. Petitioner stated in his petition that he filed two state court actions on this issue which were still pending in the state courts when he filed his federal action. A state prisoner is required to exhaust available state remedies before applying for federal habeas corpus relief. Anderson v. Harless, 459 U.S. 4 (1982); Picard v. Connor, 404 U.S. 270 (1971); 28 U.S.C. Sec. 2254(b). The exhaustion requirement may not be waived and may be raised sua sponte by this Court on appeal. Parker v. Rose, 728 F.2d 392 (6th Cir. 1984); Bowen v. Tennessee, 698 F.2d 241 (6th Cir. 1983). A petition containing unexhausted issues must be dismissed by the district court. Rose v. Lundy, 455 U.S. 509 (1982); Bowen v. Tennessee, supra. Despite the appearance of an exhaustion issue on the face of the petition, the district court dismissed the petition on the merits.

    4

    Accordingly, it is ORDERED that the district court's judgment is vacated and the case is remanded for a determination of whether petition exhausted his state remedies. Sixth Circuit Rule 9(d)(4).

    *

    The Honorable Anna Diggs Taylor, U.S. District Judge for the Eastern District of Michigan, sitting by designation