Robert Linton, Petitioner-appellant, v. Carole Shiplevy, Respondent-appellee, 12 F.3d 213 (6th Cir. 1993)

Before: NELSON and BATCHELDER, Circuit Judges, and MATIA, District Judge.^* 

ORDER

Robert Linton appeals a district court order dismissing without prejudice his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Following a guilty plea, petitioner was convicted of aggravated burglary and robbery in the Summit County, Ohio, Court of Common Pleas in October 1990. Petitioner was sentenced to concurrent terms of 8 to 25 years and 8 to 15 years of imprisonment, respectively. Thereafter, petitioner filed a motion for leave to file a delayed appeal, which was denied by the Ohio Court of Appeals. The Ohio Supreme Court denied leave to appeal.

Next, petitioner filed his petition for a writ of habeas corpus in the district court asserting the same claims he asserted in the state courts: (1) that his guilty plea was involuntary because it was made while he was under the influence of phenobarbital; and (2) that he received ineffective assistance of counsel. The state responded in opposition, and petitioner filed a reply. The district court dismissed the petition without prejudice for failure to exhaust available state court remedies. The district court later granted petitioner a certificate of probable cause to appeal.

On appeal, petitioner reiterates the two claims he asserted in the district court, and the state has notified this court that it does not intend to file a brief on appeal. Upon consideration, the judgment is affirmed for the reasons stated by the district court in its opinion and order filed March 4, 1993. Essentially, petitioner must fairly present his claims to the state courts in the context of a post-conviction proceeding beginning in the trial court pursuant to Ohio Rev.Code Sec. 2953.21 before seeking federal habeas corpus relief. See Engle v. Isaac, 456 U.S. 107, 125-26 n. 28 (1982); Duckworth v. Serrano, 454 U.S. 1, 3-4 (1981) (per curiam).

Accordingly, the judgment of the district court is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.