Unpublished Dispositionlacy Wayne Nanney, Petitioner-appellant, v. Warden, Tennessee State Penitentiary, Respondent-appellee, 915 F.2d 1572 (6th Cir. 1990)

Before KRUPANSKY and BOGGS, Circuit Judges, and JOINER, Senior District Judge.^* 

ORDER

This pro se appellant petitions for a rehearing of this court's August 1, 1990, order affirming the district court's denial of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254.

Upon review of Nanney's petition, we find that his argument contains merit and he has established that he has exhausted all state remedies in the courts of Tennessee. Nanney's case is distinguishable from the case of Parker v. Rose, 728 F.2d 392, 394-95 (6th Cir. 1984), relied upon in our prior order, in that, unlike the facts in Parker, a state appellate court has specifically held that Nanney's arguments of an unconstitutional jury instruction and denial of a complete trial transcript have been waived under Tennessee's post-conviction statute, because they were not presented on direct appeal or in a previous petition for post-conviction relief.

Further, the last determinative state court judgment, by the Tennessee Supreme Court, did not explicitly rely on a state procedural bar in denying review of the appellate court's decision. Thus, the district court must consider the merits of Nanney's federal claims, which it did not do, as the dismissal below was based solely on lack of exhaustion of state remedies. Harris v. Reed, 109 S. Ct. 1038, 1043 (1989); Johnson v. Burke, 903 F.2d 1056, 1060 (6th Cir. 1990), petition for cert. filed, July 11, 1990 (No. 90-5192); Hill v. McMackin, 893 F.2d 810, 813-14 (6th Cir. 1989).

Accordingly, Nanney's petition for rehearing is granted, and the district court's order denying his petition for a writ of habeas corpus is hereby vacated and remanded for consideration of the petitioner's claims on the merits. Rule 9(b) (6), Rules of the Sixth Circuit.