Richard Williams, Petitioner-appellant, v. Robert Lecureux, Respondent-appellee, 52 F.3d 327 (6th Cir. 1995)

ORDER

Richard Williams appeals a district court judgment dismissing his petition for a writ of habeas corpus filed 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).

Following a jury trial in the Saginaw County, Michigan, Circuit Court in February 1990, Williams was convicted of second degree criminal sexual conduct. Williams was sentenced to 5 to 15 years of imprisonment. The Michigan Court of Appeals affirmed the conviction and sentence on appeal, and Williams did not appeal. Next, Williams filed a motion for relief from judgment in the state trial court which was denied. A delayed application for leave to appeal to the Michigan Court of Appeals was denied, as was a subsequent application for leave to appeal to the Michigan Supreme Court.

Thereafter, Williams filed his habeas petition in the district court alleging, inter alia, that: (1) he was denied due process and his right to confrontation when the trial court conducted an in camera hearing to determine the competency of the seven-year-old prosecuting witness to testify; and (2) he received ineffective assistance of counsel regarding sentencing. Respondent responded in opposition, and Williams submitted a reply. The magistrate judge recommended that the petition be dismissed as without merit, and both parties filed objections. The district court adopted the magistrate judge's recommendation and dismissed the petition. Thereafter, the district court granted Williams a certificate of probable cause to appeal.

On appeal, petitioner reiterates his confrontation and ineffective assistance of counsel claims. Respondent argues that petitioner's claims on appeal are without merit. Upon consideration, the judgment of the district court is affirmed for the reasons stated in the magistrate judge's report and recommendation filed June 27, 1994, and adopted by the district court in its order filed July 26, 1994.

First, the district court properly rejected petitioner's claim that he possesses a right under the Sixth and Fourteenth Amendments to be present and to confront the child witness at a pretrial hearing conducted to determine the competency of the witness to testify in this sexual abuse case. See Kentucky v. Stincer, 482 U.S. 730, 740-47 (1987). Second, petitioner's claim that he received ineffective assistance of counsel at sentencing and on appeal lacks merit because he cannot show that counsel's performance was deficient and that, as a result, the trial or appeal was unfair and the results unreliable. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

Accordingly, the judgment of the district court is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.