Unpublished Dispositiontony E. Bowers, Petitioner-appellant, v. John Jabe, Respondent-appellee, 762 F.2d 1005 (6th Cir. 1985)

Bowers requests counsel on appeal from the district court's judgment denying his petition for a writ of habeas corpus. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and Bowers' informal brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Bowers was convicted by a Flint, Michigan jury of armed robbery and received a thirty year sentence. Bowers was a juvenile at the time of the offense, and his petition raises as issue concerning the bind-over proceedings in juvenile court. At the time Bowers filed his petition, his state court appeal was pending before the Michigan Supreme Court.

The district court adopted the Magistrate's recommendation that the case be dismissed for failure to exhaust state remedies. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 275 (1971). However, there is an exception to the exhaustion requirement where further recourse to the state courts would be futile. Matlock v. Rose, 731 F.2d 1236, 1239-41 (6th Cir. 1984); Wiley v. Sowders, 646 F.2d 642, 647 (6th Cir.), cert. denied, 454 U.S. 1091 (1981). Bowers argues that further attempts to exhaust his state remedies would be futile because two Michigan Court of Appeals cases decide his issue against him.

The district court adopted the Magistrate's holding that, because the Michigan Supreme Court has not spoken on the issue, there is no certainty the court would reject the issue out of hand. We agree with the district court's holding.

The motion for the appointment of counsel is denied. The judgment of the district court is affirmed under Rule 9(d) (3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.