Unpublished Dispositiondavid Brewer, Petitioner-appellant, v. Norris W. Mcmackin, Supt., Respondent-appellee, 815 F.2d 76 (6th Cir. 1987)

ORDER

The pro se petitioner, David Brewer, is appealing the dismissal of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. A certificate of probable cause was granted by the district court.

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

On March 18, 1983, a jury found the petitioner guilty of carrying a concealed weapon in violation of Ohio Rev.Code Ann. Sec. 2923.12 and murder in violation of Ohio Rev.Code Ann. Sec. 2903.02. The petitioner alleged self-defense at trial. His appeal was unsuccessful. He thereafter sought leave to appeal to the Ohio Supreme Court which denied his motion on the basis that it did not present a substantial constitutional question.

On October 24, 1985, the petitioner filed a petition for writ of habeas corpus in federal district court. He challenged his conviction on four grounds:

1. Improper prosecutorial questioning about his post-arrest failure to give an exculpatory statement;

2. A witness' testimony differed at trial from his earlier testimony at a suppression hearing;

3. Improper prosecutorial questioning about a prior conviction; and,

4. Improper comment upon the petitioner's post-arrest invocation of his right to counsel.

Issues No. 1 and 2 were not raised by the petitioner during direct appeal. He also failed to object to them following the magistrate's report and recommendation. These grounds are therefore waived on appeal. Thomas v. Arn, 106 S. Ct. 466 (1985). The petitioner did object to Issues No. 3 and 4 and they are before the Court on appeal. However, for the reasons stated in the magistrate's report and recommendation and the district court opinion, we affirm the decision of the district court.

Accordingly, it is ORDERED that the judgment of the district court is affirmed. Rule 9(d) (3), Rules of the Sixth Circuit.