Unpublished Dispositiongeorge Phillips, Petitioner-appellant, v. William Seabold, Warden; Attorney General of Kentucky,respondents-appellees, 932 F.2d 969 (6th Cir. 1991)

Before KEITH and MILBURN, Circuit Judges, and DOUGLAS W. HILLMAN, Senior District Judge.^* 

ORDER

This pro se Kentucky prisoner moves for the appointment of counsel in his appeal from the district court's order 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. Upon review of the record and the briefs, the panel unanimously agrees that oral argument is not necessary. Fed. R. App. P. 34(a).

Following a jury trial, George Phillips was convicted of first degree rape, first degree sodomy, and first degree burglary. He was sentenced to three consecutive terms of ten years imprisonment. His conviction was affirmed by the Kentucky Supreme Court.

Through a motion for declaratory relief filed in the Clark County Circuit Court, Phillips challenged the severity of his sentence. He argued that the trial court abused its discretion by imposing separate, consecutive sentences. The motion was denied. Although Phillips was granted leave to file a belated appeal in the Kentucky Court of Appeals, he failed to file a brief. The appeal was dismissed. Phillips then filed the instant petition for a writ of habeas corpus. He asserted that his sentences were improperly "severed" and that the sentences should have been ordered to run concurrently.

The magistrate rejected respondent's argument that the petition was barred because of a failure to exhaust state judicial remedies. The magistrate determined that Phillips failed to raise a colorable federal claim and reviewed the petition on the merits. The magistrate recommended that the petition should be dismissed. Upon de novo review in light of petitioner's objections, the district court adopted the magistrate's recommendation and dismissed the petition.

Upon review, we conclude that the petition was properly dismissed for the reasons stated by the magistrate in his report and recommendation filed on July 16, 1990, and adopted by the district court in its order filed August 6, 1990.

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