Unpublished Dispositionrobert L. Smith, Jr., Petitioner-appellant, v. J.h. Rose, Warden, Sterling P. Gray, Judge; William M.leech, Attorney General of Tennessee, Respondents-appellees, 755 F.2d 933 (6th Cir. 1985)

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 briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

In this action, petitioner seeks federal habeas corpus relief under 28 U.S.C. § 2254 in connection with Tennessee state criminal convictions. The district court dismissed the petition for failure to exhaust available state remedies. This appeal followed.

Upon consideration, we affirm. Petitioner bases his request for habeas relief upon an alleged denial of advisory or 'stand by' counsel during his state court criminal trial. This claim has yet to be fairly presented to Tennessee state court for review. Petitioner's effort to raise this in a petition for writ of error coram nobis appears to have been ineffectual to this end; the instant claim is not in that category of factual errors at which the writ of error coram nobis is addressed. T.C.A. Sec. 40-26-105. Petitioner may have erred in presenting the petition for writ of error coram nobis to the Tennessee courts. The proper vehicle for the presentation of petitioner's claim to Tennessee state courts was, and continues to be, Tennessee's Post-Conviction Procedure Act, T.C.A. Sec. 40-30-101, et seq. We thus find the district court's dismissal for want of exhaustion of available state remedies to be correct.

It appearing therefore that the question on which decision of the cause depends is so unsubstantial as not to need further argument, Rule 9(d) (3), Rules of the Sixth Circuit,

It is ORDERED tht the final order of the district court may be and it hereby is affirmed.