Unpublished Dispositionmitchell Heard, Petitioner-appellant, v. Lloyd May, Respondent-appellee, 812 F.2d 1407 (6th Cir. 1987)

ORDER

The petitioner moves for counsel on appeal from the district court's judgment denying his petition for a writ of habeas corpus. 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 the petitioner's brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The petitioner was convicted by a jury in a Macomb County, Michigan court of breaking and entering. He received a three and a half to ten year sentence. He exhausted his state remedies.

His petition raised three issues concerning a statement by the prosecutor in closing argument. The prosecutor noted that defense counsel had not argued the petitioner's testimony to the jury, and stated that the jury could draw its own inference from that silence. The district court held that the isolated nature of this statement and the strength of the prosecutor's case showed that the petitioner was not denied his right to fundamental fairness. Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974). We agree with this conclusion of the district court.

The district court also held that the evidence was sufficient under Jackson v. Virginia, 443 U.S. 307, 324 (1979). We also agree with this conclusion 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.