Unpublished Dispositiondavid Alan Ovegian, Petitioner-appellant, v. Denise M. Quarles, Respondent-appellee, 836 F.2d 550 (6th Cir. 1987)

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U.S. Court of Appeals for the Sixth Circuit - 836 F.2d 550 (6th Cir. 1987) Dec. 28, 1987

Before BOYCE F. MARTIN, Jr. and RALPH B. GUY, Jr., Circuit Judges, and EDWARD H. JOHNSTONE, District Judge.* 


This matter is before the court upon consideration of petitioner's motion for appointment of counsel. This case has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Petitioner appeals from the district court's judgment denying his petition for writ of habeas corpus relief filed pursuant to 28 U.S.C. § 2254. On appeal, petitioner's only claim for habeas relief involves the use of a prior felony conviction to impeach petitioner's testimony in violation of state law. However, the magistrate found that this claim had been deleted from an earlier habeas petition in which petitioner sought relief from the same conviction, and recommended that this second petition be dismissed as successive. The district court adopted the magistrate's report and recommendation and dismissed the petition.

Upon review, we conclude that petitioner waived his right to appeal this issue because he failed to object to this aspect of the magistrate's report and recommendation. Wilson v. McMacken, 786 F.2d 216, 220 (6th Cir. 1986). Further, the district court was within its discretion in dismissing the petition as successive under 28 U.S.C. § 2244(b). See Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986). Finally, petitioner asserts only an error of state law which we conclude did not deprive petitioner of a fundamentally fair trial. See Matlock v. Rose, 731 F.2d 1236, 1242 (6th Cir. 1984), cert. denied, 470 U.S. 1050 (1985).

Therefore, petitioner's motion for appointment of counsel is denied. The judgment of the district court is affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.


The Honorable Edward H. Johnstone, Chief U.S. District Judge for the Western District of Kentucky, sitting by designation