Man Lewis, Jr., Petitioner-appellant, v. Richard Johnson, Respondent-appellee, 959 F.2d 234 (6th Cir. 1992)

ORDER

Man Lewis, Jr., a pro se Michigan prisoner, appeals a district court judgment dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

A jury found Lewis guilty of attempted criminal sexual conduct in the third degree. Upon conviction, Lewis pleaded guilty to the charge of habitual offender, fourth offense. He received a sentence of eight to twenty years. On appeal Lewis argued: 1) an in-court identification and warrantless search of his clothing violated the Fourth Amendment; 2) there was insufficient evidence to sustain a conviction; 3) the jury instruction for a lesser included offense shifted the burden of proof to the defense; 4) counsel's failure to object to certain evidence constituted ineffective assistance of counsel; 5) the admission of a blood test was reversible error; 6) prosecutorial misconduct was committed during cross-examination of alibi witnesses and during closing arguments; and 7) the habitual offender sentence violated state law.

The Michigan Court of Appeals affirmed the conviction and the Michigan Supreme Court denied leave to appeal. Lewis then filed a motion for a new trial and resentencing with the trial court. The motion was denied. On appeal, the Michigan Court of Appeals ordered the habitual offender, fourth offense conviction reduced to habitual offender, third offense. The Michigan Supreme Court denied leave to appeal.

In his petition Lewis raised the same issues he presented on direct appeal to the Michigan appellate courts. Over Lewis's objections, the district court adopted the magistrate judge's recommendation that the petition be dismissed. Lewis then filed this timely appeal raising the same issues he presented to the district court except for the challenge to his habitual offender sentence. Lewis has requested pauper status and moved for the appointment of counsel.

Upon de novo review, we conclude that the district court properly dismissed Lewis's petition because the record shows that Lewis 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).

Accordingly, we grant pauper status, deny the appointment of counsel, and affirm the district court's judgment for the reasons set forth in the magistrate judge's report and recommendation filed on September 3, 1991, as adopted by the district court in its judgment filed on September 13, 1991. Rule 9(b) (3), Rules of the Sixth Circuit.