Unpublished Dispositionwilliam T. Smith, Petitioner-appellant, v. Steve Smith, Warden, Luther Luckett Correctional Complex,respondent-appellee, 885 F.2d 871 (6th Cir. 1989)

Before MERRITT and KRUPANSKY, Circuit Judges and JAMES L. GRAHAM, 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 record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

William T. Smith, a Kentucky state prisoner, requests the appointment of counsel on appeal of the dismissal of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Smith was convicted following two separate jury trials of several counts each of receiving stolen property and being a first degree persistent felony offender. He was sentenced to a total of thirty years imprisonment. In this petition, Smith argued that he was entitled to a severance from his co-defendant at his first trial, and that both his trial and appellate counsel rendered ineffective assistance in that case. He also alleged ineffective assistance at his second trial due to his counsel's failure to call witnesses who Smith suggested would support his defense of lack of knowledge that the property in question was stolen.

Upon consideration, we conclude that the dismissal of this petition must be affirmed, as Smith has not shown that he was denied fundamentally fair trials. See Webster v. Rees, 729 F.2d 1078, 1979-80 (6th Cir. 1984). The denial of Smith's motion for a severance is not a ground for habeas relief, as there is a strong policy in favor of joint trials when the charges will be proved by the same series of acts, and Smith has not shown that the existence of antagonistic defenses confused the jury. See United States v. Horton, 847 F.2d 313, 317 (6th Cir. 1988). Smith's various claims of ineffective assistance of counsel are similarly meritless, as he did not demonstrate deficient performance or resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

Accordingly, petitioner's motion for counsel is denied, and the district court's judgment is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.