Unpublished Dispositionfaysal D. Muhammad, Petitioner-appellant v. Dale Foltz, Respondent-appellee, 802 F.2d 458 (6th Cir. 1986)

BEFORE: MARTIN and JONES, Circuit Judges; and COHN, District Judge^* 

ORDER

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 brief and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

In this action, petitioner seeks federal habeas corpus relief under 28 U.S.C. § 2254 of a Michigan state criminal conviction for felonious assault. The cause was initially referred to a magistrate who recommended dismissal. This recommendation was ultimately adopted by the district court. After obtaining a certificate of probable cause, petitioner filed this appeal. On appeal petitioner has filed an informal brief and moves for the appointment of appellate counsel.

Upon consideration, we agree with the district court's disposition of this matter. Our review of the record, in light of McBee v. Grant, 763 F.2d 811 (6th Cir. 1985), convinces us the district court was correct in finding that petitioner's failure to demonstrate cause and prejudice for failure to object to the jury instruction at issue precludes federal habeas relief. For these reasons, and for the reasons amply set forth in the magistrate's report adopted by the district court, we affirm.

It appearing therefore that the question on which decision of the cause depends is so unsubstantial as not to need further argument, Rule 9(d) (3), Rules of the Sixth Circuit,

It is ORDERED that the motion for the appointment of counsel be denied and that the final order of the district court be and it is hereby affirmed.