Unpublished Dispositionallen Ray Burton, Petitioner-appellant, v. Robert Brown, Jr., Director, Michigan Department Ofcorrections, Respondent- Appellee, 842 F.2d 330 (6th Cir. 1988)

ORDER

This pro se petitioner, a Michigan state prisoner, appeals the district court's judgment dismissing his petition seeking a writ of habeas corpus filed under 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

The petitioner is currently serving a five to fifteen year sentence imposed upon his guilty plea to second degree criminal sexual conduct, Mich.Comp.Laws Sec. 750.520c(1) (b). The conviction was affirmed by the Michigan Court of Appeals. Application for leave to appeal to the Michigan Supreme Court was denied.

As grounds for habeas relief, the petitioner claimed that the sentencing court impermissibly considered a prior charge of first degree sexual assault against the same victim, and based thereon sentenced him outside the applicable Michigan sentencing guidelines. Further, the petitioner claimed that even though he was allowed allocution before sentencing, he was denied allocution after the sentencing judge expressed his concerns.

Upon review, we conclude that the district court properly denied the petitioner habeas relief for the reasons stated in the magistrate's report and recommendation dated January 26, 1987 and adopted by the district court on March 3, 1987. Accordingly, we hereby affirm the district court's judgment. Rule 9(b) (5), Rules of the Sixth Circuit.