David Behrens, Petitioner-appellant, v. Dan Reynolds, Respondent-appellee, 37 F.3d 1509 (10th Cir. 1994)

Mr. Behrens appeals from the dismissal of his habeas corpus petition, 28 U.S.C. 2254. The district court dismissed the petition for failure to exhaust state remedies. Our jurisdiction arises under 28 U.S.C. 1291 and 2253, and we affirm.

Mr. Behrens challenges the validity of two prior Illinois state convictions used to enhance the sentence imposed upon him in CRF-82-5 and CRF-82-6 (Woodward County, Oklahoma), and claims ineffective assistance of counsel based upon a failure to appeal his conviction. The alleged invalidity of the Illinois convictions, while not clearly articulated, does not involve failure to appoint counsel. Cf. Custis v. United States, 114 S. Ct. 1732 (1994). Mr. Behrens did not directly appeal his conviction or appeal the denial of his application for post-conviction relief.

Based on Mr. Behrens' pleadings, we are satisfied that he has failed to demonstrate either that he has met the exhaustion requirement or that an exception to the exhaustion requirement applies. See Coleman v. Thompson, 111 S. Ct. 2546, 2557 n. 1 (1991); Castille v. Peoples, 489 U.S. 346, 351 (1989). Thus, the petition must be dismissed. See 28 U.S.C. 2254(b); Rose v. Lundy, 455 U.S. 509, 510 (1982).

AFFIRMED. The mandate shall issue forthwith.