Unpublished Dispositionalgie Britton, Petitioner-appellant, v. E.p. Perini, Supt., Respondent-appellee, 798 F.2d 1413 (6th Cir. 1986)

Petitioner-appellant Algie Britton appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. 5 2254.

On July 14, 1983, petitioner was convicted by a jury in the Lucas County Court of Common Pleas of murder with specification in violation of Ohio Rev. Code 5 2903.02 and attempted murder with specification in violation of Ohio Rev. Code 5 2903.02. Petitioner was sentenced to consecutive terms of imprisonment of fifteen years to life for the murder conviction and five to twenty-five years for the attempted murder conviction. In addition, petitioner was sentenced to two consecutive terms of imprisonment of three years for each specification.

The trial court, over defense counsel's objection, admitted into evidence an exhibit consisting of eight mug shots. The exhibit was introduced for the purposes of identification, and petitioner was one of the eight individuals depicted.

On direct appeal to the Ohio Court of Appeals for the Sixth Judicial Circuit, petitioner challenged the state trial court's admiSSiOn of the mug shot exhibit, The Ohio Court of Appeals found that, as a matter of state law, the trial court erred by admitting the mug shot exhibit, However, the Ohio Court of Appeals found the error harmless in light of the "overwhelming" proof of petitioner's guilt. Thereafter, the Ohio Supreme Court denied petitioner's motion for leave to appeal.

Petitioner filed an application for a writ of habeas corpus pursuant to 22 U.S.C. 5 2254, alleging that he was deprived of due process and a fair trial as a result of admission of the mug shot exhibit. The magistrate recommended that petitioner's application be dismissed, reasoning that breach of a state evidentiary rule is not a basis for habeas corpus relief absent a fundamental fairness violation. The district court, after reviewing the magistrate's decision, dismissed petitioner's application. The district court reasoned that, in light of the other abundant evidence of petitioner's guilt, the trial court's error did not rise to the level of a denial of due process.

On appeal petitioner argues that he was deprived of due process and a fair trial because the state trial court admitted into evidence a mug shot which indicated that he had a prior criminal record.

Upon consideration of the entire record, the briefs filed herein, and in light of the decision of the Ohio Court of Appeals, we AFFIRM the judgment of the district court for the reasons stated in the magistrate's Report and Recommendation filed May 28, 1985, which Report and Recommendation was adopted by the district judge in his Memorandum Opinion and Order filed September 5, 1985.