Unpublished Dispositionclarence Corethers, Petitioner-appellant, v. Arthur Tate, Jr., Supt., Respondent-appellee.clarence Corethers, Petitioner-appellant, v. State of Ohio, Arthur Tate, Supt., Respondents-appellees, 815 F.2d 702 (6th Cir. 1987)

O R D E R

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

In these consolidated cases, the Ohio prisoner appeals from the district court judgments dismissing his Sec. 2254 habeas petition for failure to exhaust available state remedies.

Petitioner sought to attack his 1982 jury conviction for carrying a concealed weapon for which he was sentenced to a term of 3 to 10 years imprisonment. Petitioner claimed his conviction was illegal due to an unconstitutional search and seizure; unlawful arrest; involuntary self-incrimination; failure of the state to disclose evidence; violation of the double jeopardy clause; and ineffective assistance of counsel. The district court found that only the issue of failure of the state to disclose evidence had been presented before the state courts.

The district court did not abuse its discretion in dismissing the habeas petition since it presented an issue which can be reviewed under Ohio's post-conviction relief procedure, namely the ineffective assistance of counsel issue. See Sayler v. Overberg, 608 F.2d 607 (6th Cir. 1979). Petitioner alleges that he was denied effective assistance of counsel because at trial counsel failed to subpoena two key witnesses and did not review the case with petitioner. This type of ineffective assistance of counsel claim requires evidence dehors the record, therefore, the issue can still be presented in Ohio post-conviction proceedings. See State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982). Petitioner must exhaust all state remedies currently available to him at the time he files a habeas application in federal court. Keener v. Ridenour, 594 F.2d 581, 584 (6th Cir. 1979), later appeal, Keener v. Taylor, 640 F.2d 839 (1981). Petitions, as in the instant case, containing exhausted and unexhausted claims cannot be addressed in the federal courts. Rose v. Lundy, 455 U.S. 509 (1982).

Therefore, the district court's judgments are hereby affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.