This Ohio state prisoner, represented by counsel, appeals the district court's judgment dismissing his application for a writ of habeas corpus filed pursuant to 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, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Challenging his jury conviction of burglary and grand theft for which he received a 13 to 25 year sentence, petitioner argued: 1) his fifth and sixth amendment rights were violated because statements which purportedly violated his Miranda right to remain silent were admitted at trial; 2) due process was not afforded because insufficient evidence existed to support the petitioner's conviction; and 3) due process was not afforded because the petitioner did not receive a hearing to determine whether he was eligible for a drug dependency program as permitted under Ohio Rev.Code Sec. 2951.041.

The district court addressed each of these issues and found them to be without merit. We agree with the conclusions of the district court for the reasons stated in the magistrate's report as adopted by the district court. We decline, however, to address the issue of the voluntariness of the petitioner's statements raised sua sponte by the magistrate and the petitioner on appeal because the issue was not exhausted at the time the petition was filed and because it was not asserted in the petition itself.

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