Chester Mckinney, Petitioner-appellant, v. Ralph Evitts, Warden; Commonwealth of Kentucky,respondents-appellees, 963 F.2d 373 (6th Cir. 1992)

Before NATHANIEL K. JONES and RALPH B. GUY, Jr., Circuit Judges, and JOINER, Senior District Judge.^* 

ORDER

Chester McKinney, a Kentucky prisoner represented by counsel, appeals a district court judgment dismissing his petition for a writ of habeas corpus filed pursuant to 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, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

After a jury trial, McKinney was found guilty of second degree manslaughter for which he received a seven year sentence. On direct appeal, his conviction was affirmed by the Kentucky Court of Appeals which subsequently denied his petition for rehearing. The Kentucky Supreme Court granted discretionary review but ultimately affirmed McKinney's conviction. McKinney's petition for rehearing was denied.

In his habeas petition, McKinney raised three grounds for relief:

(1) The trial court erred by not directing a verdict of acquittal for McKinney.

(2) The trial court erroneously instructed the jury on second degree murder and reckless homicide.

(3) The trial court denied petitioner a fair trial by permitting the deceased's father to testify about his son's character, habits and customs.

A magistrate judge recommended denying the petition, finding that claims one and three were procedurally barred and that claim two was without merit. After de novo review in light of McKinney's objections, the district court adopted the magistrate judge's report and dismissed the habeas petition.

On appeal, McKinney only asserts the merits of claims two and three. McKinney's first claim has been abandoned on appeal and is, therefore, not reviewable by this court. See McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir. 1986).

Upon review, we conclude the district court properly dismissed McKinney's habeas petition because he was not denied a fundamentally fair trial. See Lundy v. Campbell, 888 F.2d 467, 469-70 (6th Cir. 1989), cert. denied, 495 U.S. 950 (1990). Accordingly, the judgment of the district court is hereby affirmed for the reasons set forth in the magistrate judge's report, as adopted by the district court in its order of June 7, 1991. Rule 9(b) (3), Rules of the Sixth Circuit.