Mack Wallace v. State of Tennessee

816 F.2d 683, 1987 WL 36943

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 2, 1987
• Docket: 86-5615
• Status: Unpublished

Opinion

816 F.2d 683

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
MACK WALLACE, Petitioner-Appellant,
v.
STATE OF TENNESSEE, Respondent-Appellee.

No. 86-5615.

United States Court of Appeals, Sixth Circuit.

April 2, 1987.

Before JONES and NORRIS, Circuit Judges, and COOK, District Judge.*

ORDER

This pro se Tennessee prisoner appeals from the district court's dismissal of his petition for habeas relief under 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 briefs submitted by the parties, this panel unanimously agrees that oral argument is not needed. Rule 9(b)(3), Rules of the Sixth Circuit.

Petitioner filed a petition for a writ of habeas corpus after unsuccessfully seeking a reversal and post-conviction relief on his sodomy conviction enhanced as an habitual criminal. Finding the petition wholly deficient, the district court dismissed it without prejudice and directed that the petitioner be sent additional petition forms in order to plea anew. After examination of petitioner's second petition, the district court again dismissed the petition without prejudice. It explained that petitioner's incoherent scribblings on the multiple papers of the petition rendered the petition so insufficient that the court could not determine what were the petitioner's claims. On appeal, petitioner has presented constitutional claims that facially have merit.

Upon review of the record, we affirm the district court's dismissal of the petitions without prejudice. Rule 2(c) and 4, Rules Governing Sec. 2254 cases. See Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977); Wacht v. Cardwell, 604 F.2d 1245, 1249 (9th Cir. 1979); Bernier v. Moore, 441 F.2d 395, 396 (1st Cir. 1971). Because the constitutional claims petitioner asserts in his appeal brief were not before the district court, we do not decide the merits of these claims.

Accordingly, we affirm the district court's order without prejudice to petitioner's refiling a future petition, pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.

* The Honorable Julian A. Cook, Jr., U.S. District Judge for the Eastern District of Michigan, sitting by designation