Mary Jane Keffer Rose v. Will T. Scott, Circuit Judge

869 F.2d 1492, 1989 U.S. App. LEXIS 2114, 1989 WL 16204

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 23, 1989
• Docket: 88-5680
• Status: Unpublished

Opinion

869 F.2d 1492

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Mary Jane Keffer ROSE, Petitioner-Appellant,
v.
Will T. SCOTT, Circuit Judge, Respondent-Appellee.

No. 88-5680.

United States Court of Appeals, Sixth Circuit.

Feb. 23, 1989.

Before RALPH B. GUY, Jr. and ALAN E. NORRIS, Circuit Judges, and ROBERT HOLMES BELL, District Judge.*

ORDER

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 briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Petitioner Rose filed this action for a writ of habeas corpus under 28 U.S.C. Sec. 2254 in which she attacks the constitutionality of a second degree manslaughter conviction entered in Kentucky. The magistrate to whom the case was assigned recommended the petition be dismissed for want of exhaustion of state court remedies. The district court adopted the recommendation, over petitioner's objections, and the instant appeal followed. The parties have briefed the issues.

Upon consideration, we find the district court correctly dismissed the petition. We have examined the opinion of the Supreme Court of Kentucky affirming the conviction as well as petitioner's brief submitted to that court. We conclude that the substance of petitioner's claim for habeas corpus relief, that is, that an erroneous jury instruction deprived her of federal due process protections, was never fairly presented to the Kentucky courts. The district court's decision to dismiss for lack of exhaustion of state remedies was proper. Boggs v. Evitts, 818 F.2d 534, 536 (6th Cir.1987).

Accordingly, the district court's judgment is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

* The Honorable Robert Holmes Bell, U.S. District Judge for the Western District of Michigan, sitting by designation