Unpublished Dispositiontracy Harris, Petitioner-appellant, v. Michael J. Montgomery, Director, Respondent-appellee, 897 F.2d 529 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 897 F.2d 529 (6th Cir. 1990) March 7, 1990

Before WELLFORD and DAVID A. NELSON, Circuit Judges, and LAWRENCE P. ZATKOFF, District Judge.* 

ORDER

Tracy Harris, a pro se Kentucky state prisoner, appeals the dismissal of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Harris was convicted of trafficking in a controlled substance following a jury trial and was sentenced to ten years imprisonment. His conviction was affirmed on direct appeal. He then filed this petition in which, in addition to the issues he had raised on appeal, he challenged the racial composition of his jury. The district court adopted the magistrate's recommendation to grant respondent's motion to dismiss the petition for failure to exhaust all issues in the state courts.

Upon consideration, we conclude that this petition was properly dismissed, as it mixed exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 510 (1982). Petitioner may return to the state courts to exhaust the disputed issue pursuant to a motion to vacate under Ky.R.Crim.P. 11.42, or he may submit a petition presenting only the exhausted claims.

Accordingly, the district court's order is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.

 *

The Honorable Lawrence P. Zatkoff, U.S. District Judge for the Eastern District of Michigan, sitting by designation