Arnold Ray Duncan v. Gary Livesay, Warden

909 F.2d 1482, 1990 U.S. App. LEXIS 24566, 1990 WL 115921

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 13, 1990
• Docket: 89-5539
• Status: Unpublished

Opinion

909 F.2d 1482

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Arnold Ray DUNCAN, Petitioner-Appellant,
v.
Gary LIVESAY, Warden, Respondent-Appellee.

No. 89-5539.

United States Court of Appeals, Sixth Circuit.

Aug. 13, 1990.

Before BOYCE F. MARTIN JR., and DAVID A. NELSON, Circuit Judges; and LIVELY, Senior Circuit Judge.

ORDER

Arnold Ray Duncan, a Tennessee state prisoner proceeding with benefit of counsel, appeals from the order of dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 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).

In his petition for relief, Duncan set forth four issues. The district court dismissed the petition on the grounds that Duncan had failed to exhaust his state court remedies.

Upon review, we conclude that the district court did not err. A state prisoner must present the substance of every claim he intends to assert in a Sec. 2254 habeas petition to all levels of state review before filing his habeas corpus petition. Unless an exception applies, if he files a petition which contains at least one issue which was not presented to a state court and he still has available to him a remedy to pursue in that state court, then his entire petition must be dismissed for failure to comply with the total exhaustion rule. Rose v. Lundy, 455 U.S. 509, 518-19 (1982); Kilby v. Jones, 809 F.2d 324, 325 (6th Cir.1987).

Duncan did not fairly present to the Tennessee Supreme Court his argument that tape recordings of an unrelated preliminary hearing were introduced into evidence in violation of his federal right of confrontation.

Accordingly, we hereby affirm the order of the district court for the reasons set forth in the court's order dated March 9, 1989. Rule 9(b)(5), Rules of the Sixth Circuit.