Unpublished Dispositionrobert J. Hodges, Plaintiff-appellant, James Durrah, Plaintiff, v. William S. Mallory, State Representative, David L. Hobson,state Senator, Defendants-appellant, 872 F.2d 1025 (6th Cir. 1989)

ORDER

Robert Hodges appeals pro se the district court's judgment dismissing his civil rights action filed under 42 U.S.C. § 1983. The appeal has been referred to a panel pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Hodges challenged the constitutionality of Ohio enhancement statutes underlying his conviction for an armed offense, claiming that the statutes, Ohio Rev.Code Sec. 2923.13, 2929.71, 2941.141, 2941.142 and 2941.143, violate the double jeopardy and due process clauses of the fifth and fourteenth amendments.

The district court overruled Hodges' objections to the magistrate's report and dismissed the action under Preiser v. Rodriquez, 411 U.S. 475, 500 (1973). It also ordered Hodges to file a habeas petition within fifteen days, apparently to avoid delay in the receipt of judicial review for habeas relief. Hodges did not file the petition. On appeal, he argues the same issues that he raised in the district court.

Upon consideration, we conclude that the district court properly dismissed this action because a ruling on the merits of plaintiff's claims could imply the illegality of his underlying conviction and he has not yet filed a successful habeas petition premised on these claims. See Hadley v. Werner, 753 F.2d 514, 516 (6th Cir. 1985) (per curiam).

Accordingly, we hereby affirm the judgment of the district court pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.