Unpublished Dispositionwillie Lee Cooper, Petitioner-appellant, v. Ted Engle, Superintendent, Respondent-appellee, 774 F.2d 1161 (6th Cir. 1985)

Cooper moves for counsel on appeal from the district court's judgment denying his petition in this habeas corpus case. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and Cooper's brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Cooper was indicted on a charge of attempted murder in Lucas County, Ohio. He was found guilty by a jury on a lesser included offense of felonious assault and received a five to fifteen year sentence. His petition alleges that he was not allowed appointed counsel of his own choosing and that the jury should have been instructed on an additional lesser included offense.

Concerning the counsel issue, the district court held that Cooper had no right to select his own court-appointed counsel. Thurston v. Maxwell, 3 Ohio St.2d 206 (1977); accord, United States v. White, 451 F.2d 1225, 1226 (6th Cir. 1971). Regarding the jury instruction issue, the court held that under Ohio law a defendant is not entitled to an instruction which is not supported by sufficient evidence. State v. Toth, 52 Ohio St.2d 206 (1977). Because the evidence in this case was not sufficient to entitle Cooper to the instruction he wanted, there is no constitutional violation. Pilon v. Bordenkircher, 593 F.2d 264, 267 (6th Cir.), vacated on other grounds, 444 U.S. 1 (1979). After an examination of the record, we agree with the conclusions of the district court.

The motion for counsel is denied. The judgment of the district court is affirmed under Rule 9(d) (3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.