Benjamin Len Bullock, Petitioner-appellant, v. Ray Toombs, Respondent-appellee, 966 F.2d 1451 (6th Cir. 1992)

ORDER

Benjamin Len Bullock, a pro se Michigan prisoner, appeals a district court order dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

On October 10, 1986, Bullock pleaded guilty to armed robbery and using a firearm in the commission of a felony. He received a two year sentence on the firearm offense and a six to forty year sentence on the armed robbery offense. On appeal, Bullock challenged his sentence arguing the trial court had not given sufficient reasons for the sentence. The Michigan Court of Appeals affirmed and the Michigan Supreme Court denied leave to appeal.

Bullock filed a petition for a writ of habeas corpus alleging his constitutional rights were violated because the trial judge did not honor a plea agreement and did not articulate sufficient reasons to support his sentence. The case was referred to a magistrate judge who recommended that the petition be dismissed because Bullock had not exhausted his available state court remedies. Over Bullock's objections, the district court adopted the magistrate judge's report and dismissed the petition. Bullock filed a timely appeal raising the same issues he presented to the district court. He also argues that the district court's decision was erroneous because he has exhausted his available state court remedies. Bullock requests leave to proceed in forma pauperis and a free transcript. He also moves for the appointment of counsel.

Upon review, we affirm the district court's judgment because Bullock failed to exhaust his available state court remedies before filing his petition for a writ of habeas corpus. See Rose v. Lundy, 455 U.S. 509, 518-20 (1982); Kilby v. Jones, 809 F.2d 324, 325 (6th Cir. 1987). Bullock may present his plea agreement argument to the state courts of Michigan under Mich.R.Ct. 6.500-6.509 (West 1990).

Accordingly, we grant leave to proceed in forma pauperis for purposes of this appeal, deny the remaining requests for relief, and affirm the district court's judgment for the reasons set forth in the magistrate judge's report and recommendation filed on November 6, 1991, as adopted by the district court on November 25, 1991. Rule 9(b) (3), Rules of the Sixth Circuit.