John E. Rembert, Petitioner-appellant, v. Dennis Baker, Warden, Respondent-appellee, 985 F.2d 561 (6th Cir. 1993)

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

ORDER

John E. Rembert, an Ohio state prisoner, requests the appointment of counsel on appeal from the denial of 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).

Rembert was convicted following a jury trial of aggravated burglary, aggravated robbery, and four counts of rape. He was sentenced to fifteen to twenty-five years' imprisonment on each count, with all but two of the sentences to run concurrently. His conviction was affirmed on appeal to the Ohio Court of Appeals. More than two years later, he filed a belated appeal to the Ohio Supreme Court, which was dismissed as untimely.

In this habeas petition, Rembert raised the same four arguments that he presented to the Ohio Court of Appeals. The district court denied the petition after reviewing the claims on the merits.

Upon review, we conclude that this petition was properly denied. The arguments raised by the petitioner are completely lacking in merit. Moreover, review of the claims is barred due to Rembert's procedural default in the state courts, for which he has not established cause or prejudice. See Murray v. Carrier, 477 U.S. 478, 486 (1986). Rembert attempts to establish cause by blaming his failure to file a timely appeal on his counsel's failure to inform him of the Ohio Court of Appeals decision. However, he has not exhausted this argument in the state courts. See Ewing v. McMackin, 799 F.2d 1143, 1149-50 (6th Cir. 1986).

Accordingly, the request for counsel is denied and the district court's judgment is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.