Unpublished Dispositionjerry J. Valentino, Petitioner-appellant, v. State of Ohio, Cuyahoga County, Respondent-appellee, 758 F.2d 654 (6th Cir. 1985)

The petitioner appeals the order denying his pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. The appeal was referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

It appears from an examination of the record that the appellant raised five issues in this habeas corpus proceeding, but that only four of these issues had been previously presented to the state courts. In this situation, the petition for a writ of habeas corpus should have been dismissed by the district court. Rose v. Lundy, 455 U.S. 509 (1982). When a 'mixed petition' reaches this court, the procedure which is required is that this court remand to the district court with directions to dismiss the petition. Bowen v. State of Tennessee, 698 F.2d 241 (6th Cir. 1983). Accordingly, the judgment of the district court is vacated, and the cause is remanded with directions to dismiss the petition.