Unpublished Dispositionmiller H. Wells, Jr., Petitioner-appellant, v. William C. Seabold, Respondent-appellee, 815 F.2d 706 (6th Cir. 1987)

Before KRUPANSKY and BOGGS, Circuit Judges, and TAYLOR, District Judge^* .

ORDER

This matter has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the briefs, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

This pro se petitioner appeals a district court order adopting the magistrate's report which recommended denial of his petition seeking a writ of habeas corpus under 28 U.S.C. § 2254.

Petitioner attacked his conviction for first degree rape, sodomy and burglary on the sole basis that the evidence presented at trial was insufficient to warrant a conviction.

Upon review, we conclude the district court properly dismissed the habeas petition. The totality of the evidence presented at petitioner's trial for first degree rape, sodomy and burglary was sufficient for any rational trier of fact to find the essential elements of the crimes beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (1979). Petitioner was positively identified by the victim as the assailant. The sperm comparison test was also positive. The issue raised by petitioner is primarily one of the victim's credibility in identifying him as the assailant. Direct evidence was received by the jury; the jury chose to believe the victim. Its resolution of this issue was apparently based upon its determination of the credibility and demeanor of the witnesses. Such determinations are entitled to "special deference" in habeas corpus proceedings. Patton v. Yount, 467 U.S. 1025 (1984); Brown v. Davis, 752 F.2d 1142, 1147 (6th Cir. 1985).

Therefore, the district court's judgment is hereby affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.