758 F. 2d 654 - Jerry Valentino v. State of Ohio Cuyahoga County
758 F2d 654 Jerry Valentino v. State of Ohio Cuyahoga County
758 F.2d 654
JERRY J. VALENTINO, PETITIONER-APPELLANT,
v.
STATE OF OHIO, CUYAHOGA COUNTY, RESPONDENT-APPELLEE.
NO. 84-3635
United States Court of Appeals, Sixth Circuit.
2/22/85
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
ORDER
BEFORE: LIVELY, Chief Judge; ENGEL, Circuit Judge; and PECK, Senior Circuit Judge.
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The petitioner appeals the order denying his pro se petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. The appeal was referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
It appears from an examination of the record that the appellant raised five issues in this habeas corpus proceeding, but that only four of these issues had been previously presented to the state courts. In this situation, the petition for a writ of habeas corpus should have been dismissed by the district court. Rose v. Lundy, 455 U.S. 509 (1982). When a 'mixed petition' reaches this court, the procedure which is required is that this court remand to the district court with directions to dismiss the petition. Bowen v. State of Tennessee, 698 F.2d 241 (6th Cir. 1983). Accordingly, the judgment of the district court is vacated, and the cause is remanded with directions to dismiss the petition.