898 F. 2d 153 - Bartley v. Sowders

Before RALPH B. GUY, Jr. and BOGGS, Circuit Judges, and PAUL V. GADOLA, District Judge.*

Donald Terry Bartley, a pro se Kentucky state prisoner, appeals the dismissal of his petition for a writ of habeas corpus filed under 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 the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Bartley entered guilty pleas to several charges of burglary, murder, robbery and attempted murder. He filed a motion to correct his sentence pursuant to Ky.R.Crim.P. 11.42, arguing that his plea agreement had been breached. When a ruling on his motion was not immediately rendered, he filed this petition, raising the plea agreement breach and also arguing that he had been denied due process in his collateral attack on his sentence. The district court dismissed the petition for failure to exhaust state remedies.

Upon consideration, we find that this petition was properly dismissed for failure to exhaust the issues in state court. See Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam). A remedy remained available to Bartley, despite his argument of failure to process his motion to correct sentence, as he could have sought a writ of mandamus in the state courts. See Moore v. Pound, 390 S.W.2d 159 (Ky.1965). Moreover, the issue involving his collateral post-conviction proceeding is not a proper basis for federal habeas relief. See Kirby v. Dutton, 794 F.2d 245, 247-48 (6th Cir.1986).

Accordingly, the district court's judgment is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.