Unpublished Dispositionomer C. Spurlock, Petitioner-appellant, v. Arthur Tate, Jr., Supt., Respondent-appellee, 772 F.2d 908 (6th Cir. 1985)

ORDER

BEFORE: ENGEL and KENNEDY, Circuit Judges; and NEESE, Senior District Judge^* .

Petitioner appeals from the order dismissing his habeas corpus petition brought under 28 U.S.C. § 2254. He now moves for appointment of counsel on appeal. The case has been referred to a panel of this Court pursuant to Sixth Circuit Rule 9(a). Upon examination of the briefs and the record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Petitioner is an Ohio prisoner convicted of rape, aggravated burglary and felonious assault. He filed this habeas corpus action alleging that he was arrested and detained by Indiana authorities without being formally charged with an offense, he was denied proper extradition proceedings, he was denied effective assistance of counsel, and he was unable to participate in his defense due to his inability to read or write.

The district court dismissed the petition as successive under Rule 9 of the Rules following 28 U.S.C. § 2254. The record reveals, however, that the ineffective assistance of counsel issue has not been exhausted in the state courts as required under Rose v. Lundy, 455 U.S. 509 (1982). Petitioner raised an ineffective assistance of counsel claim in his direct appeal and in his state post-conviction action, but challenged only counsel's trial errors. In the present action, petitioner claims counsel was ineffective by failing to raise the pretrial extradition issues. The substance of this issue has not been presented to the state courts. See Anderson v. Harless, 459 U.S. 4 (1982); Koontz v. Glossa, 731 F.2d 365 (6th Cir. 1984). Ineffective assistance of counsel based on evidence dehors the record can be raised under Ohio's post-conviction procedures, Ohio Rev. Code Sec. 2953.21(A). The Ohio courts have the discretion to entertain a second post-conviction action. Ohio Rev. Code Sec. 2953.23. Since the petition contains an unexhausted issue, the case must be remanded to the district court with instructions to dismiss the petition. Bowen v. Tennessee, 698 F.2d 241 (6th Cir. 1983) (en banc).

Accordingly, it is ORDERED that the motion for appointment of counsel is denied. The district court's judgment is vacated and the case is remanded with instructions to dismiss the petition. Sixth Circuit Rule 9(d) (4).