Unpublished Dispositiondaniel H. Jones, Petitioner-appellant, v. Gene Scroggy, Warden; Attorney General, State of Kentucky;and Kentucky Board of Parole, Respondents-appellees, 812 F.2d 1407 (6th Cir. 1987)

ORDER

This Kentucky state prisoner appeals from a district court order adopting the Magistrate's Report and Recommendation to dismiss the petitioner's habeas corpus petition filed under 28 U.S.C. § 2254. Petitioner sought to attack his 1975 jury conviction for rape for which he received a sentence of life imprisonment without parole.

The petitioner basically argued that the repeal of the statute under which he was convicted and sentenced should result in the reduction of his sentence so as to bring the sentence into line with the permissable sentences allowed pursuant to the rape statute which superseded KRS 435.090.

A review of the petition for writ of habeas corpus reveals that the petitioner has failed to indicate that he raised this issue in any state court proceeding. To this extent, the record reveals that the petitioner has failed to exhaust state remedies with respect to the failure of the parole board or the governor to commute his life sentence without parole. See Picard v. Connor, 404 U.S. 270, 275 (1971); Rose v. Lundy, 455 U.S. 509 (1982). See also Sampson v. Love, 782 F.2d 53, 55 (6th Cir. 1986); 28 U.S.C. § 2254(b).

For these reasons, this panel unanimously agrees that oral argument is not necessary to this appeal. Rule 34(a), Federal Rules of Appellate Procedure. The district court's judgment is, accordingly, affirmed pursuant to Rule 9(d) (3), Rules of the Sixth Circuit.