Unpublished Dispositionjames P. Ferguson, Petitioner-appellant, v. Thomas Dreher, Respondent-appellee, 918 F.2d 178 (6th Cir. 1990)

ORDER

James P. Ferguson, a pro se Kentucky prisoner, appeals the district court's order dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. 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).

Ferguson challenges his jury conviction of first degree assault, for which he was sentenced to ten years imprisonment. His conviction was affirmed by the Kentucky Court of Appeals and the Kentucky Supreme Court denied his motion for further review. In his habeas petition, Ferguson alleges that his due process rights were violated when: (1) the trial court allowed the admission of hearsay evidence and (2) the trial court failed to instruct the jury on a lesser included offense.

Over Ferguson's objections, the district court adopted the magistrate's recommendation and dismissed Ferguson's petition for failing to exhaust his state court remedies. Ferguson filed a timely appeal. In his brief he requests the appointment of counsel.

Upon review, we conclude that the district court properly dismissed Ferguson's petition without prejudice to his right to refile, after he has exhausted his state court remedies. Although the facts necessary to support Ferguson's federal claims were before the state courts in the direct appeal of his conviction and a similar state law claim was made, the state courts have not had a fair opportunity to apply the controlling legal principles of Ferguson's constitutional claims to the facts. Anderson v. Harless, 459 U.S. 4, 6 (1982).

Accordingly, we deny counsel and affirm the district court's judgment for the reasons stated in the magistrate's report and recommendation filed on September 28, 1989, and in the district court's order filed on January 21, 1990. Rule 9(b) (5), Rules of the Sixth Circuit.