Unpublished Dispositionharry Truman Wimbley, Petitioner-appellant v. State of Tennessee, Respondent-appellee, 787 F.2d 594 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 787 F.2d 594 (6th Cir. 1986)



E.D. Tenn.


BEFORE: RYAN, Circuit Judge; CELEBREZZE and BROWN, Senior Circuit Judges.

This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the record and the briefs, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Harry Truman Wimbley, a Tennessee prisoner, brings this appeal from the dismissal of his 28 U.S.C. § 2254 petition. He is serving a thirty-five year sentence for second degree murder. The issue on appeal is whether the appellant has adequately exhausted state court remedies.

An application for a federal writ of habeas corpus may not be considered until and unless Wimbley has exhausted all available state court remedies as to all the claims presented. Rose v. Lundy, 455 U.S. 509 (1982). The appellant makes the claim of ineffective assistance of trial counsel in his habeas petition. It is clear this claim has not been presented before the Tennessee courts. The appellant may still raise the issue in a Tennessee Post Conviction Relief petition. See Tenn. Code Ann. Sec. 40-30-105.

Accordingly, the judgment of the district court is affirmed pursuant to Rule 9(d) (3), Rules of the Sixth Circuit.