909 F. 2d 1484 - Nanney v. Warden Tennessee State Penitentiary

Before KRUPANSKY and BOGGS, Circuit Judges, and CHARLES W. JOINER, Senior District Judge.*

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).

Lacy Wayne Nanney appeals the district court's order dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. Sec. 2254. Upon consideration, we find correct the district court's decision to dismiss for failure to exhaust state remedies available to the petitioner in the courts of the State of Tennessee.

The district court concluded that the petitioner had failed to pursue the following claims in state courts: (1) denial of effective assistance of counsel by failure to file a complete trial transcript; (2) denial of effective assistance of counsel by failure to object at trial to an alleged improper jury instruction on malice and failure to raise that issue on appeal; and (3) alleged error by the trial judge in failing to sign the trial transcript. A thorough review of the record reveals that the district court did not err in determining that not all of the petitioner's factual and legal claims have been presented in the state courts. The district court correctly concluded that it was therefore precluded from reviewing the merits of the petitioner's claims. 28 U.S.C. Sec. 2254(b); Anderson v. Harless, 459 U.S. 4, 6 (1982); Parker v. Rose, 728 F.2d 392, 394-95 (6th Cir.1984).

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