Unpublished Dispositionanthony Hinkston, Petitioner-appellant, v. Terry L. Morris, Respondent-appellee, 841 F.2d 1126 (6th Cir. 1988)

ORDER

The respondent moves to remand this appeal taken from the district court's order dismissing the petition for a writ of habeas corpus. 28 U.S.C. § 2254. 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 the petitioner's brief, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

A Cincinnati, Ohio jury convicted the petitioner of breaking and entering and four counts of aggravated robbery. He received a ten to twenty-five year sentence. The district court dismissed the petition for failure to exhaust state remedies.

The respondent's motion to remand concedes that the petitioner did exhaust his state remedies. A review of documents accompanying petitioner's motion to amend the district court's order also reveals that petitioner appealed his conviction to the state appellate court and the state supreme court. Exhaustion is not a jurisdictional issue. Strickland v. Washington, 466 U.S. 668, 684 (1984). Accordingly, we conclude this habeas petition should not have been dismissed for failure to exhaust available state remedies.

The motion for a remand is granted. The order of the district court is vacated and the case is remanded for further proceedings. Rule 9(b) (6), Rules of the Sixth Circuit.