740 F.2d 3
Leon ALCORN, Petitioner-Appellant,
Steve SMITH, Warden, Kentucky State Reformatory, Respondent-Appellee.
United States Court of Appeals,
July 9, 1984.
On Appeal from United States District Court for the Eastern District of Kentucky at Lexington.
Before KEITH and MERRITT, Circuit Judges, and WISEMAN, District Judge.*
ORDER DENYING PETITION FOR REHEARING AND SUGGESTION FOR
REHEARING EN BANC
Before the panel is the Petitioner-Appellant's Petition for Rehearing of 724 F.2d 37, and Suggestion for Rehearing En Banc. The Court did not favor rehearing en banc and the petition was referred to the panel for decision.
Appellant has also filed a Motion for Leave to file an Appendix. The appendix has been considered by the panel along with the brief and argument of petitioner.
Petitioner urges the Court to reconsider the en banc holding of Bowen v. Tennessee, 698 F.2d 241 (6th Cir.1983), that the issue of exhaustion may not be waived. This the Court declines to do and Bowen controls the decision in this case.
The petition for rehearing is denied.
Honorable Thomas A. Wiseman, Jr., District Judge, United States District Court for the Middle District of Tennessee, sitting by designation