Unpublished Dispositionjohn Lee Gentry, Petitioner-appellant, v. Dale Foltz, Respondent-appellee, 815 F.2d 77 (6th Cir. 1987)

ORDER

This Michigan pro se petitioner moves the Court for the appointment of counsel in his appeal from a district court judgment dismissing his petition seeking a writ of habeas corpus under 28 U.S.C. § 2254.

Petitioner was convicted in 1983 by a jury of first-degree murder and sentenced to life imprisonment. Petitioner filed his habeas petition arguing that his conviction was constitutionally infirm because the prosecutor violated his right to remain silent by impeaching him on cross-examination about his silence and by commenting on his silence in his closing argument. On appeal, the petitioner raises for the first time an additional ground of insufficiency of the evidence to support his conviction.

Upon review of the cause, we conclude that the district court properly dismissed petitioner's suit for the reasons stated by it. The silence which was commented upon by the prosecutor simply was not induced by the Miranda guarantee that his silence would not be held against him. His claims asserted in the district court are, therefore, without merit. See Jenkins v. Anderson, 447 U.S. 231 (1980); Fletcher v. Weir, 455 U.S. 603 (1982) (per curiam) ; Weir v. Wilson, 744 F.2d 532, 535-36 (6th Cir. 1985) (per curiam), cert. denied, 469 U.S. 1223 (1985); United States v. Crowder, 719 F.2d 166, 170-172 (6th Cir. 1983) (en banc), cert. denied, 466 U.S. 974 (1984).

Petitioner's claim of insufficiency of the evidence is not reviewable on appeal because it is being raised for the first time on appeal and it was not first presented to the state courts. Furthermore, it does not render the petition a mixed petition subject to dismissal under Rose v. Lundy, 455 U.S. 509 (1982), because it is being raised for the first time on appeal. Brown v. Marshall, 704 F.2d 333 (6th Cir.), (per curiam) cert. denied, 464 U.S. 835 (1983).

This panel unanimously agrees that oral argument is not necessary in this appeal. Rule 34(a), Federal Rules of Appellate Procedure. The petitioner's motion for the appointment of counsel is, accordingly, denied and the district court's judgment is hereby affirmed pursuant to Rule 9(d) (3), Rules of the Sixth Circuit.