Unpublished Dispositiontitus Tony Ardister, Plaintiff-appellant, v. Judge Wonnell; M. Miller; John F. Jackson; Richard P.seiter; R. Berry; Sergeant Evans; Governorceleste; State of Ohio,defendants-appellees, 774 F.2d 1161 (6th Cir. 1985)

The plaintiff appeals the judgment denying his petition for a writ of habeas corpus. He now moves for the appointment of counsel. That motion was referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit.

The plaintiff pleaded quilty to charges of forgery and possession of criminal tools and was sentenced to a year's imprisonment. He did not pursue a direct appeal in the state courts. He did, however, file a habeas corpus action in the district court raising two claims:

(1) He was denied a 'right of appeal' in regard to his attempts to receive credit for time spent in custody in the county jail; and

(2) He was denied the effective assistance of counsel.

After the State filed a response, the district court entered an opinion finding the plaintiff had not exhausted available state remedies. The district court also denied a certificate of probable cause.

The plaintiff's notice of appeal made specific reference to the above order of the district court. It also included a reference, however, to an April 9, 1985, judgment of the district court dismissing a related civil rights action filed by the plaintiff.

To the extent the notice of appeal would give this Court jurisdiction to review the judgment in the civil rights action, we note that judgment was affirmed by this Court in Cases Nos. 85-3354 and 85-3377.

To the extent the notice of appeal gives this Court jurisdiction to review the habeas action, we construe the receipt of the record as an application to this Court for a certificate of probable cause. Rule 22(b), Federal Rules of Appellate Procedure. For the reasons stated by the district court in its opinion of April 22, 1985, we conclude the district court did not err in dismissing the habeas action for failure to exhaust state remedies. Therefore, it is ORDERED:

(1) that the motion for appointment of counsel be and it hereby is denied, and

(2) that the application for a certificate of probable cause be and it hereby is denied.

Upon examination of the record and the plaintiff's informal brief, this panel agrees unanimously that oral argument is not needed in this appeal insofar as it pertains to the district court's order in the related civil rights action. Rule 34(a), Federal Rules of Appellate Procedure. Accordingly,

It is ORDERED that the appeal as it pertains to such order be and it is dismissed as moot. Rule 9(d) (1), Rules of the Sixth Circuit.