Unpublished Dispositionthomas M. Blankenship, Petitioner-appellant, v. Terry L. Morris, Supt., Respondent-appellee, 923 F.2d 854 (6th Cir. 1991)

ORDER

This Ohio prisoner, by counsel, appeals the district court's judgment dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. The panel unanimously agrees that oral argument is not necessary. Fed. R. App. P. 34(a).

Following a jury trial, Thomas M. Blankenship was convicted on enhanced charges of felonious assault, kidnapping and escape. He was sentenced to consecutive terms of fifteen to twenty-five years and three to fifteen years imprisonment. His convictions were affirmed by the Ohio Court of Appeals for the Ninth Judicial District and by the Ohio Supreme Court.

In his petition for a writ of habeas corpus, Blankenship alleged that the prosecutor misstated the law and attempted to shift the burden of proof by remarks made during closing argument.

Upon review, we conclude that the prosecutor's comments were not so egregious as to result in the denial of a fundamentally fair trial. See Donnelly v. DeChristoforo, 416 U.S. 637, 647-48 (1974). On consideration of the petition for a writ of habeas corpus, the district court noted that the prosecutor's comments were a misstatement of law. Cf. In re Winship, 397 U.S. 358, 364 (1970). Nevertheless, in light of the totality of the circumstances, the district court properly concluded that the misstatement of law did not deprive Blankenship of a fundamentally fair trial. See, e.g., Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982).

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