762 F2d 1012 Robert Turner v. Judge William S Mathews

762 F.2d 1012

ROBERT E. TURNER, PLAINTIFF-APPELLANT,
v.
JUDGE WILLIAM S. MATHEWS; STEVE TOLBERT AND TERRANCE
LANDRIGAN, DEFENDANTS-APPELLEES.

NO. 84-3916

United States Court of Appeals, Sixth Circuit.

4/4/85

ORDER

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.


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1

BEFORE: ENGEL and KEITH, Circuit Judges; and COHN, District Judge.*

2

This matter is before the Court upon appellant's motion for appointment of counsel. The appeal has been referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the record, appellant's brief, and motion for counsel, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

3

The appellant is appealing the dismissal of his civil rights complaint made pursuant to the procedures set forth in Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983). The appellant is presently incarcerated in a state prison in Orient, Ohio. His complaint and amended complaint allege a conspiracy to keep him incarcerated longer than provided in a plea bargain. The overriding objective in this civil rights action is the appellant's release from custody. Therefore, the exclusive remedy is habeas corpus relief with the comity inspired prerequisite of exhaustion of state remedies. Smartt v. Avery, 411 F.2d 408, 409 (6th Cir. 1969); Richardson v. Fleming, 651 F.2d 366 (5th Cir. 1981). Consequently, the district court correctly dismissed the appellant's cause of action because these claims have not been presented before the Ohio State courts. Preiser v. Rodriguez, 411 U.S. 475 (1973).

4

Accordingly, it is ORDERED that the motion for appointment of counsel be denied and the district court is affirmed for the reasons set forth in the order of Judge John D. Holschuh, dated October 24, 1984. Rule 9(d)3, Rules of the Sixth Circuit.

*

The Honorable Avern Cohn, U.S. District Judge for the Eastern District of Michigan, sitting by designation