Unpublished Dispositionstephen Paul Jones, Petitioner-appellant, v. Ralph Evitts, Warden, Respondent-appellee, 907 F.2d 150 (6th Cir. 1990)

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).

This pro se Kentucky prisoner appeals the district court's order dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

Challenging his jury conviction of first degree assault, criminal mischief, and leaving the scene of an accident, for which he received a sentence of 15 years imprisonment, Jones filed his habeas petition alleging that: (1) the trial court erred by permitting the records of Jones's blood alcohol test to be entered into evidence when the blood sample had been destroyed before Jones could have it independently tested; (2) the trial court erred by instructing the jury on first degree assault when it was not warranted by the evidence; and (3) the trial court's application of Ky.Rev.Stat. Sec. 532.055 to his case violated the ex post facto provisions of the state and federal constitutions.

After a review of the magistrate's report and Jones's objections, the district court adopted the magistrate's recommendation and dismissed the case. Jones has filed a timely appeal, raising the same issues which were before the district court. In his brief on appeal, Jones also requests the appointment of counsel and in forma pauperis status on appeal. Jones has also filed separate motions seeking the same relief.

Upon review, we affirm the district court's judgment for the reasons contained in the magistrate's report and recommendation of April 13, 1989, and as adopted by the district court in its order of April 28, 1989. Jones has simply failed to show that he was denied a fundamentally fair trial. Hence, he is not entitled to habeas corpus relief. See Webster v. Rees, 729 F.2d 1078, 1079-80 (6th Cir. 1984).

Accordingly, the motion for in forma pauperis status is granted, the motion for the appointment of counsel is denied, and the district court's judgment is hereby affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.