Unpublished Dispositionhoward C. Bankston, Petitioner-appellant, v. Donal Campbell, Warden; Charles W. Burson, Attorneygeneral, Respondents-appellees, 886 F.2d 1315 (6th Cir. 1989)

ORDER

Petitioner, Howard C. Bankston, appeals a judgment of the district court which dismissed his petition for a writ of habeas corpus. He now moves for leave to amend his original petition. Upon review of the record and the parties' briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

On December 14, 1988, Bankston filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the District Court for the Middle District of Tennessee. As the basis of his request for that relief, Bankston alleged that his adjudication as an habitual traffic offender and convictions for felonious operation of a motor vehicle were unconstitutional as they had been obtained in violation of his rights to due process and the ex post facto application of the laws. Bankston also conceded that he had not yet exhausted state remedies available to him as he was then pursuing a motion for post-conviction relief in the Tennessee courts. Despite the continued pendency of that proceeding, however, Bankston argued that the failure to exhaust state remedies should be excused as more than seventeen months had already passed since his initial filing of the motion for post-conviction relief. The district court, however, determined that that delay was not sufficient to waive Bankston's failure to exhaust state remedies and therefore dismissed the petition for habeas relief. Bankston then filed this appeal.

Upon review of the record, this court concludes that the distrct court did not err in dismissing the petition for a writ of habeas corpus. Accordingly, the motion for leave to amend the petition is hereby denied and the district court's final judgment is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.