Unpublished Dispositiondarryl S. Pariseau, Petitioner-appellant, v. Arnold Jago, Respondent-appellee, 875 F.2d 866 (6th Cir. 1989)

Before ENGEL, Chief Judge, BOGGS, Circuit Judge, and BENJAMIN F. GIBSON, District Judge.^* 

ORDER

This Ohio prisoner, by counsel, appeals the district court's order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. 2254. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the record and briefs, the panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Darryl S. Pariseau was indicted and tried on a charge of aggravated murder. He was subsequently convicted of the lesser included offense of murder and sentenced to serve fifteen years to life imprisonment. In his petition for a writ of habeas corpus, Pariseau claimed eight trial errors: (1) erroneous jury instruction on murder and failure to instruct on manslaughter, (2) admission of evidence that petitioner used a gun to commit a prior unrelated robbery, (3) admission of hearsay evidence, (4) admission of evidence of prior crimes, (5) introduction of prejudicial photographs of the victim, (6) exclusion of prior inconsistent statements by prosecution witnesses, (7) insufficient evidence to support the conviction, and (8) erroneous instruction on aiding and abetting.

The matter was referred to a magistrate who found no constitutional error and recommended that the petition should be denied. Pariseau filed objections to the report, in which he reasserted his claims. Following de novo review, the district court adopted the magistrate's report and recommendation; the petition was dismissed.

On review, we conclude that the district court did not abuse its discretion by dismissing the petition for a writ of habeas corpus; Pariseau's claims do not reach the magnitude of constitutional error.

First, the allegedly erroneous jury instructions did not infect the entire trial so as to deny petitioner a fair trial. See Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Wood v. Marshall, 790 F.2d 548, 551-52 (6th Cir. 1986), cert. denied, 107 S. Ct. 889 (1987). Similarly, Pariseau did not allege evidentiary errors so egregious that he was denied fundamental fairness. See Davis v. Jabe, 824 F.2d 483, 487 (6th Cir.), cert. denied, 108 S. Ct. 509 (1987). Third, the evidence, when viewed in the light most favorable to the prosecution, was sufficient to support the conviction for murder. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

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