Unpublished Dispositionwilliam Goforth, Petitioner-appellant, v. William C. Seabold, Warden, Respondent-appellee, 860 F.2d 1079 (6th Cir. 1988)

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 briefs and record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Petitioner filed this action for habeas corpus relief under 28 U.S.C. § 2254 attacking the constitutionality of a 1983 Kentucky conviction for first degree sodomy. The magistrate to whom the matter was referred recommended the petition be denied. The district court adopted the recommendation, over petitioner's objections, and this appeal followed. On appeal the parties have briefed the issues, petitioner proceeding pro se.

Upon consideration, we find the instant record supports the district court's disposition of this petition. The trial transcript contains testimony sufficient to support the first degree sodomy conviction. Jackson v. Virginia, 443 U.S. 307 (1979). The transcript does not reflect, however, petitioner's contention that he was entitled to an instruction on a lesser included offense. We additionally note the petitioner's claim that the jury instruction was constitutionally infirm was not preserved for review. The claimed error cannot be considered on habeas corpus review because no cause and prejudice for the procedural default has been demonstrated. Wainwright v. Sykes, 433 U.S. 72 (1977).

The district court's judgment is therefore affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.