Unpublished Dispositionlarry L. Mcclellan, Petitioner-appellant v. Arnold R. Jago, Respondent-appellee, 785 F.2d 309 (6th Cir. 1986)

This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

In this action brought under 28 U.S.C. § 2254, petitioner challenges the constitutionality of a state court burglary conviction. The district court denied relief and plaintiff has filed this appeal. On appeal, both sides have submitted cogent, well-written briefs.

Upon consideration, we agree with the district court's disposition of this case. Our examination of the record convinces us that, in all probability, the exclusion of the witness in question was on the basis of relevancy, not as a sanction for a discovery violation. Reviewing the decision in this light we do not find the evidentiary ruling to have resulted in defendant having been subjected to a fundamentally unfair trial. Burks v. Egeler, 512 F.2d 221 (6th Cir.), cert. denied, 423 U.S. 937 (1975). Assuming arguendo that the witness was prevented from testifying as a sanction for a discovery violation we do not reach a different result. The evidence of petitioner's guilt was substantial and unequivocal; the excluded testimony appears (in the absence of a formal proffer) to have had little relevancy to petitioner's claim of a coerced confession in view of the dearth of any direct evidence to support the claim. It is our conclusion petitioner received a fair trial culminating in the sentence of incarceration he is currently serving. We affirm.

It appearing therefore that the question on which decision of the cause depends is so unsubstantial as not to need further argument, Rule 9(d) (3), Rules of the Sixth Circuit,

It is ORDERED that the final order of the district court be and it is hereby affirmed.