Unpublished Dispositiondelward C. Covington, Petitioner-appellant, v. Gene Scroggy, Respondent-appellee, 805 F.2d 1033 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 805 F.2d 1033 (6th Cir. 1986)

Oct. 16, 1986


Before NELSON and RYAN, Circuit Judges, and ENSLEN, District Judge.* 

ORDER

The petitioner appeals pro se from the district court's order of February 4, 1986 dismissing his petition for writ of habeas corpus, sustaining respondent's motion to dismiss. However, the district court did grant petitioner a certificate of probable cause on February 28, 1986. In conjunction with this appeal petitioner has also filed a motion for counsel.

Petitioner raises three issues on appeal: 1) whether he was correctly found to be a second offender to trafficking; 2) whether he was correctly found to be a Persistent Felony Offender (PFO) under Kentucky law; and 3) whether he was rendered effective assistance of counsel.

The district court correctly sustained the respondent's motion to dismiss petitioner's petition for writ of habeas corpus on the grounds that the first two issues were not raised in state court on direct appeal from the conviction. This constitutes a procedural default under Kentucky law. Gross v. Commonwealth, Ky., 648 S.W.2d 853, 857 (Ky.1983). Thus, habeas corpus review is precluded. Leroy v. Marshall, 757 F.2d 94, 99 (6th Cir. 1985); see Cole v. Stevenson, 620 F.2d 1055 (4th Cir.), cert. denied, 449 U.S. 1004 (1980); Forman v. Smith, 633 F.2d 634 (2d Cir. 1980), cert. denied, 450 U.S. 1001 (1981).

Petitioner's claim of ineffective assistance of counsel is merely stated without any factual support. This claim is unmeritorious because petitioner has failed to show that his counsel was ineffective and that he was thereby prejudiced as required to obtain relief pursuant to the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984).

For these reasons it is ORDERED that the district court's judgment be affirmed. Sixth Circuit Rule 9(d) (3). Therefore, the motion for counsel is also denied.

 *

The Honorable Richard A. Enslen, U.S. District Judge for the Western District of Michigan, sitting by designation