815 F. 2d 704 - McDonald v. Strickrath

This matter is before the Court upon consideration of petitioner's appeal from the district court's order denying habeas relief under 28 U.S.C. Sec. 2254. The matter has been referred to a panel of the court pursuant to Rule 9, Rules of the Sixth Circuit. Upon examination of the certified record and parties' briefs, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Petitioner alleges that his state conviction for larceny by trick is unconstitutional because it is not supported by sufficient evidence, the trial judge's jury instructions were erroneous and his counsel was ineffective by failing to provide defense evidence and by failing to make a motion to suppress evidence obtained in violation of petitioner's Miranda rights.

Upon consideration, this Court concludes that the district court's order denying relief must be affirmed because petitioner has presented a mixed petition of exhausted and unexhausted claims which requires dismissal of the action. Rose v. Lundy, 435 U.S. 509 (1982). Precisely, petitioner did not claim that his counsel failed to move to suppress evidence obtained in violation of his Miranda rights as a basis for his ineffective assistance of counsel claim in his state post-conviction proceeding. Hence, the claim is unexhausted. Sampson v. Love, 782 F.2d 53 (6th Cir. 1986). The claim may still be addressed by the state courts in a post-conviction proceeding pursuant to Ohio Revised Code Sec. 2953.23.

It is therefore ORDERED that the district court's order be and hereby is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.