Unpublished Dispositionrobert Murphy, Petitioner-appellant, v. Dewey Sowders, Warden, Respondent-appellee, 932 F.2d 969 (6th Cir. 1991)

ORDER

Robert Murphy, a Kentucky pro se prisoner, appeals the district court's judgment dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination pursuant to Fed. R. App. P. 34(a), this panel unanimously agrees that oral argument is not necessary.

In April 1988, a jury convicted Murphy of first degree manslaughter for which he was sentenced to a ten year term of imprisonment. The Kentucky Court of Appeals affirmed the conviction on direct appeal and the Kentucky Supreme Court denied Murphy's motion for discretionary review.

In his habeas petition, Murphy alleged that he was denied his state and federal rights to a fair trial and due process of law when the state trial court refused to give his requested jury instruction on his right to use deadly physical force to protect himself from being kidnapped.

Following de novo review in light of Murphy's objections, the district court adopted the magistrate's proposed findings of fact and recommendation, and dismissed the petition.

Upon review, we affirm the district court's judgment because the record shows that Murphy received a fundamentally fair trial. See Lundy v. Campbell, 888 F.2d 467, 469-70 (6th Cir. 1989), cert. denied, 110 S. Ct. 2212 (1990). The jury instructions, taken as a whole, were not so infirm as to render the trial unfair; Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Thomas v. Arn, 704 F.2d 865, 868-69 (6th Cir. 1983); and Murphy has not demonstrated that the failure to give the requested jury instruction amounted to a fundamental miscarriage of justice likely to have resulted in the conviction of an innocent person. Bagby v. Sowders, 894 F.2d 792, 795 (6th Cir.) (plurality opinion) (en banc), cert. denied, 110 S. Ct. 2626 (1990).

Accordingly, the district court's judgment dismissing Murphy's petition for a writ of habeas corpus is hereby affirmed for the reasons stated herein and for those set forth in the magistrate's proposed findings of fact and recommendation filed August 10, 1990, as adopted by the district court by order filed September 28, 1990. Rule 9(b) (5), Rules of the Sixth Circuit.