786 F.2d 1165
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
LARRY JOE JONES Petitioner-Appellant
v.
HERMAN C. DAVIS, WARDEN, Respondent-Appellee.
85-5870
United States Court of Appeals, Sixth Circuit.
2/4/86
W.D.Tenn.
VACATED AND REMANDED
ORDER
BEFORE: CONTIE, Circuit Judge, PECK, Senior Circuit Judge, GIBSON, District Judge*.
Petitioner is appealing from an order dismissing his 28 U.S.C. Sec. 2254 habeas corpus action. The appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the informal brief and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
It appears from the record that in 1980 petitioner was convicted of two counts of aggravated rape, two counts of aggravated kidnapping and grand larceny. The Court of Criminal Appeals of Tennessee affirmed the kidnapping and larceny convictions but dismissed the rape convictions. Leave to appeal was denied by the Tennessee Supreme Court. Post-conviction relief was denied by the Shelby County Criminal Court, the Court of Criminal Appeals affirmed and the Supreme Court of Tennessee denied permission to appeal.
Petitioner filed a 28 U.S.C. Sec. 2254 petition in the United States District Court asserting the issues: 1) that he was denied due process rights to a fair trial; and 2) that he was unconstitutionally denied a copy of his original trial transcript. The district court dismissed the habeas corpus action. Petitioner appealed and has pending in this Court a motion for appointment of counsel.
Upon review of the record, it appears that the first ground asserted in his habeas corpus petition was not exhausted in the state courts. The merits of the second ground of the petition should not have been reached since there had not been total exhaustion of the issues. Rose v. Lundy, 455 U.S. 509 (1982).
It is ORDERED that the judgment of the district court be vacated and the case remanded for further proceedings consistent with this decision. Rule 9(d)(4), Rules of the Sixth Circuit.
The Honorable Benjamin F. Gibson, U.S. District Judge for the Western District of Michigan, sitting by designation