Unpublished Dispositionclarence Allen Crosby, Petitioner-appellant, v. Arthur Tate, Jr., Supt., Respondent-appellee, 887 F.2d 1086 (6th Cir. 1989)

Before NATHANIEL R. JONES and RALPH B. GUY, Jr., Circuit Judges, and WILLIAM O. BERTELSMAN, 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 briefs and record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Petitioner filed an action for habeas corpus relief under 28 U.S.C. § 2254 challenging the constitutionality of a 1986 Ohio conviction for felonious assault with a firearm specification in violation of Ohio Rev.Code Secs. 2903.11 and 2929.71. The district court declined to issue the petition and dismissed the case. On appeal the parties have briefed the issues, petitioner proceeding pro se.

Upon consideration, we find that the record and law support the district court's decision. The claimed incorrect evidentiary ruling and improper closing argument by the prosecutor did not amount to a denial of a fundamentally fair trial. Habeas corpus relief is therefore unavailable. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988); Donnelly v. DeChristoforo, 416 U.S. 637, 643-48 (1974). Petitioner's double jeopardy claim, that the firearm specification punishment was unconstitutionally cumulative, is without merit. Missouri v. Hunter, 459 U.S. 359, 368-69 (1983).

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