Unpublished Dispositionola Hudson, Petitioner-appellant, v. Arnold R. Jago, Superintendent, Respondent-appellee, 767 F.2d 920 (6th Cir. 1985)

Petitioner has appealed the district court's dismissal of his habeas corpus petition brought under 28 U.S.C. § 2254. The appeal has been referred to a panel of the Court pursuant to Sixth Circuit Rule 9(a). Upon examination of the briefs and the record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The district court dismissed the petition on the grounds that petitioner had failed to exhaust his state remedies as required before a state prisoner can bring a federal habeas corpus action. See Anderson v. Harless, 459 U.S. 4 (1982); Picard v. Connor, 404 U.S. 270 (1971); 28 U.S.C. § 2254(b). The district court correctly held that petitioner's state remedies were not exhausted since his state appeal was then pending in the state courts. See Juliano v. Cardwell, 432 F.2d 1051 (6th Cir. 1970); accord, Sherwood v. Tomkins, 716 F.2d 632 (9th Cir. 1983); Horowitz v. Wainwright, 709 F.2d 1403 (5th Cir. 1983). However, it now appears that the Ohio Supreme Court has denied petitioner's application for leave to appeal and therefore petitioner no longer has any pending state actions.

Accordingly, it is ORDERED that the district court's judgment is vacated and the case remanded for further proceedings. Sixth Circuit Rule 9(d) (4).