Unpublished Dispositionraul Andino, Petitioner-appellant, v. Arthur Tate, Jr., Superintendent, Respondent-appellee, 762 F.2d 1005 (6th Cir. 1985)

ORDER

BEFORE: JONES and KRUPANSKY, Circuit Judges; and HULL, Chief District Judge.^* 

This matter is before the Court upon the appellant's motion for appointment of counsel. The appeal has been referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the record, the appellant's motion and brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The appeal concerns the dismissal of the appellant's Habeas Corpus petition for failure to exhaust state judicial remedies. On appeal, the appellant contends that the issues set forth in his petition were brought before the Ohio Supreme Court in a petition for Writ of Mandamus.

The appellant is presently confined at the Chillicothe Ohio Correctional facility as a result of state convictions for possession of heroin, cocaine, and possession of criminal tools. He presented three issues in his petition for writ of habeas corpus. The first issue surrounds his contention that he was denied a fair and impartial trial. He alleges several defects concerning the indictments. This issue has never been fairly presented to the Ohio Supreme Court as it was not set forth in the petition for Writ of Mandamus before that Court. The issue, therefore, has not been properly exhausted, and the district court did not err in dismissing the appellant's petition. See Rose v. Lundy, 455 U.S. 509 (1982); Koontz v. Glossa, 731 F.2d 365 (6th Cir. 1984).

Accordingly, it is ORDERED that the motion for counsel be denied and the judgment of the district court is affirmed. Rule 9(d) (3), Rules of the Sixth Circuit.