OpenJurist

107 F3d 874 Troutman v. E Meloy

107 F.3d 874

Kenneth TROUTMAN, Petitioner-Appellant,
v.
Christopher E. MELOY, Respondent-Appellee.

No. 96-1785.

United States Court of Appeals, Seventh Circuit.

Submitted Feb. 5, 1997.*
Decided Feb. 05, 1997.

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

Before FLAUM, MANION and EVANS, Circuit Judges.

ORDER

1

Kenneth Troutman's petition for post-conviction relief was denied by the Indiana state court and Troutman timely filed a notice of appeal. Overlooking the fact that Troutman was prosecuting his appeal pro se, the state court referred the appeal to the public defender. Troutman, apparently under the impression that his appeal was concluded, filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 in federal district court. This is Troutman's appeal of the district court's dismissal, without prejudice, of his petition.

2

The state court oversight has been remedied and Troutman's appeal in state court is proceeding.1 Accordingly, Troutman's federal petition for habeas relief is premature. See Farrell v. Lane, 939 F.2d 409, 410 (7th Cir.1991); Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th Cir.1985). Should Troutman bring a § 2254 petition again, after he has properly exhausted the state court process, it will not be construed as a successive petition.

3

The judgment of the district court is AFFIRMED.

*

After an examination of the briefs and the record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and the record. See Fed.R.App.P. 34(a); Cir.R. 34(f)

1

Troutman was provided records for prosecuting his state appeal. Transcripts were ordered and prepared. A hearing was scheduled, and an order to transport issued