Unpublished Dispositionwilliam A. Rose, Petitioner-appellant, v. al C. Parke, Respondent-appellee, 863 F.2d 49 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 863 F.2d 49 (6th Cir. 1988) Nov. 25, 1988

Before LIVELY and WELLFORD, Circuit Judges and JOHN W. PECK, Senior Circuit Judge.


ORDER

The petitioner moves for bail pending appeal from the district court's denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

A Louisville, Kentucky jury convicted the petitioner of four counts of criminal solicitation to commit murder. The petitioner received four concurrent twenty year terms. The Kentucky Supreme Court affirmed the convictions.

The petitioner subsequently filed a RCr 11.42 motion in the state trial court. When this motion was denied, the petitioner appealed to the state appellate court. The appellate court dismissed the appeal when the petitioner did not properly file the record. Rose did not appeal to the Kentucky Supreme Court.

In Kentucky, a prisoner must include all his issues in his first RCr 11.42 motion; failure to do so results in a bar to further collateral attack in state court. Stamps v. Rees, 834 F.2d 1269, 1274 (6th Cir. 1987), cert. denied, 108 S. Ct. 1279 (1988). Because the petitioner filed an earlier RCr 11.42 motion, Kentucky law may bar him from pursuing any further state remedies. Rose did not appeal to the Kentucky Supreme Court.

Rose may have committed procedural defaults requiring him to satisfy the cause and prejudice test before obtaining habeas relief. See Leroy v. Marshall, 757 F.2d 94, 97-99 (6th Cir.), cert. denied, 474 U.S. 831 (1985). Rose has not demonstrated that he will likely be entitled to habeas relief in respect to these procedural deficiencies.

We find no clear error that the district court has committed with respect to its treatment of Rose's claims on their merits justifying his immediate release.

Accordingly, the motion for bail pending appeal is denied. The order of the district court is affirmed under Rule 9(b) (5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument. We make no judgment with respect to the merits of Rose's appeal from denial of his habeas corpus application.