Unpublished Dispositionraymond O. Baker, Petitioner-appellant, v. al C. Parke, Warden, Respondent-appellee, 931 F.2d 56 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 931 F.2d 56 (6th Cir. 1991) Feb. 12, 1991

AFFIRMED.

Before KENNEDY and ALAN E. NORRIS, Circuit Judges, and MILES, Senior District Judge.* 

ORDER

Raymond O. Baker, a Kentucky prisoner proceeding pro se, moves for the appointment of counsel and appeals from the order of the district court dismissing his petition for a writ of habeas corpus filed pursuant to 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 briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Baker was returned to prison in 1984 with new sentences received for crimes committed while on parole. His parole was automatically terminated pursuant to Ky.Rev.Stat. 439.352. Baker argued that failure to afford him a revocation hearing violated his rights to due process under the fourteenth amendment.

At issue is whether an inmate's right to a revocation hearing was clearly established in 1984. Upon review, we conclude that it was not.

In February of 1984, this court rendered an unpublished opinion in which we upheld the constitutionality of Ky.Rev.Stat. 439.352. Harris v. Rees, No. 83-5145, slip op. at 2 (6th Cir. Feb. 27, 1984), cert. denied, 469 U.S. 864 (1984). This court did not specifically find the statute to be unconstitutional until 1988, Summers v. Scroggy, No. 87-5064, slip op. at 2 (6th Cir. July 31, 1987), cert. denied, 485 U.S. 941 (1988), and we decline to apply that case's holding retroactively. Harrison v. Parke, No. 89-6495 (6th Cir. Nov. 6, 1990) (per curiam).

Accordingly, the order of the district court is hereby affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit, and Baker's motion for counsel is denied.

 *

The Honorable Wendell A. Miles, Senior U.S. District Judge for the Western District of Michigan, sitting by designation