Unpublished Dispositionjohn M. Holland, Petitioner-appellant, v. Dewey Sowders, Warden, Respondent-appellee, 915 F.2d 1571 (6th Cir. 1990)

ORDER

The 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 briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

John M. Holland, a pro se Kentucky prisoner, appeals the dismissal, without prejudice, of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Holland has filed a motion to supplement the record. The respondent has filed a motion to authorize transfer. It appears from the record that Holland's extradition has been held in abeyance by a state court order pending a ruling on Holland's state court challenge to that extradition. The district court properly dismissed the petition for failure to exhaust state court remedies because it cannot be said that exhaustion is futile. See Pillette v. Foltz, 824 F.2d 494, 498 (6th Cir. 1987).

Therefore, the district court's order of dismissal, without prejudice to Holland's right to refile upon having exhausted his state court remedies, is hereby affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit. The motion to supplement the record is denied. The motion to authorize transfer is denied as moot.