Unpublished Dispositionjesse Lee Howard, Petitioner-appellant, v. Denise Quarles, Warden, Cotton Correctional Facility,respondent-appellee, 914 F.2d 256 (6th Cir. 1990)

Petitioner, Jesse Lee Howard, appeals the district court's denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. A jury found Howard guilty of breaking and entering an occupied dwelling on October 30, 1984 with intent to commit larceny. Mich.Comp.Laws Sec. 751.110. The opinion and order denying the writ were entered on August 23, 1989.

Having had the benefit of oral argument and having carefully considered the record on appeal and the briefs of the parties, we are unable to say that the district court erred in denying the petitioner's request for a writ. We find that the evidence was sufficient to convict Howard of breaking and entering. A stolen television as well as burglary tools were found in the car occupied by Howard. The car matched descriptions of a vehicle involved in robberies which occurred before the October 30 robbery for which Howard was arrested and convicted. The jury was entitled to reject Howard's unsubstantiated defense theory that he borrowed the car from one Pat Tudron.

With respect to Howard's ineffective assistance of counsel claim, we find no contention of merit. We note especially that the prosecutor's comment that "none of the evidence in this case has been contradicted" is not a comment " 'manifestly intended' to reflect on the accused's silence or of such a character that the jury would 'naturally and necessarily' take [it] as such...." Hearn v. Mintzes, 708 F.2d 1072, 1077 (6th Cir. 1983) (citations omitted). The prosecutor's comments could not be taken inevitably as a comment on the defendant's right to remain silent because two other individuals found in the car with the defendant could have testified as rebuttal witnesses. Furthermore, because the comments were not extensive and the evidence of guilt was otherwise substantial, we do not find that petitioner's trial counsel's failure to object to these comments constitutes a sufficient basis for an ineffective assistance claim. See id. at 1077.

For the reasons expressed herein, as well as those stated in the district court's opinion of August 23, 1989, the denial of the petition is AFFIRMED.