Unpublished Dispositionrichard Lowe, Petitioner-appellant, v. Michael Dutton, Warden, Respondent-appellee, 896 F.2d 553 (6th Cir. 1990)

Before DAVID A. NELSON and BOGGS, Circuit Judges, and FRANK J. BATTISTI, District Judge.^* 

ORDER

Richard Lowe, a Tennessee 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. The respondent argues that this court lacks jurisdiction due to Lowe's alleged failure to file a timely notice of appeal. 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).

Lowe was convicted of second degree murder following a jury trial and sentenced to life imprisonment. After exhausting state remedies, he filed this petition for habeas relief, arguing that his statement to the police was erroneously admitted into evidence as intoxication had prevented him from voluntarily, knowingly, and intelligently waiving his rights, and that he received ineffective assistance of counsel.

Upon consideration, we conclude that jurisdiction is not lacking in this case, as petitioner's motion for a certificate of probable cause can be construed as a timely notice of appeal. See McMillan v. Barksdale, 823 F.2d 981, 983 (6th Cir. 1987). Moreover, we conclude that the district court properly dismissed this petition, as the record shows that Lowe was not denied a fundamentally fair trial. See Webster v. Rees, 729 F.2d 1078, 1079-80 (6th Cir. 1984). The record shows that the state proved the voluntariness of petitioner's waiver of rights by a preponderance of the evidence, see Colorado v. Connelly, 479 U.S. 157, 168 (1986), and that the performance of Lowe's counsel was neither deficient nor prejudicial to his case. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

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