861 F. 2d 720 - Elrich v. J McCullion

Before KRUPANSKY and RALPH B. GUY, Jr., Circuit Judges, and RONALD E. MEREDITH, District Judge.*

This pro se petitioner moves for appointment of counsel and appeals the district court's judgment denying his petition for writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. 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 briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Petitioner was convicted by a Xenia, Ohio Municipal Court of driving while under a suspended license, and driving a vehicle with an expired license plate's sticker. He was sentenced to thirty days in jail, fined $250.00, and assessed court costs. In his habeas petition, he raised the following claims: 1) double jeopardy; 2) ineffective assistance of counsel; 3) illegal search and seizure; 4) the non-disclosure of exculpatory evidence; 5) violation of the privilege against self-incrimination; and 6) arrest without probable cause. The magistrate recommended that the petition be denied finding no merit to petitioner's claims. The district court adopted the magistrate's report over petitioner's timely objections.

Upon review, we affirm the district court's judgment. Petitioner did not fairly present his claims to the Ohio state courts. He appealed his conviction to the Greene County, Ohio Court of Appeals, but that appeal was dismissed for want of prosecution. Petitioner is now barred from seeking further review in the Ohio courts because of the doctrine of res judicata. See State v. Perry, 10 Ohio St.2d 175, 180, 226 NE2d 104, 108 (1967). As such, petitioner was required to allege cause and prejudice to excuse his procedural default. See Engle v. Isaac, 456 U.S. 107 (1982); Wainwright v. Sykes, 433 U.S. 72 (1977). Because petitioner has failed to allege cause and prejudice, the district court was precluded from reviewing his claims.

Accordingly, the motion for counsel is denied, and the district court's judgment is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.