Unpublished Dispositionjohn L. Bates, Petitioner-appellant, v. Larry Lack, Warden, et al., Respondents-appellees, 860 F.2d 1078 (6th Cir. 1988)

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U.S. Court of Appeals for the Sixth Circuit - 860 F.2d 1078 (6th Cir. 1988)

Oct. 14, 1988


Before WELLFORD and DAVID A. NELSON, Circuit Judges, and RICHARD B. McQUADE* , Jr., District Judge.

PER CURIAM.


Bates, a pro se petitioner, appeals from the district court's denial of his habeas corpus petition on a number of grounds, including principally sufficiency of the evidence supporting his Tennessee court first degree murder conviction and the state trial court's limiting him to eight peremptory strikes during jury selection.

On July 23, 1982, a state court jury convicted Bates of first degree murder of James Larry Tinker, and Bates was subsequently sentenced to life imprisonment. Petitioner appealed his conviction to the Tennessee Court of Criminal Appeals, which affirmed the trial court's judgment on July 13, 1983. The Tennessee Supreme Court denied permission to appeal and Bates' subsequent petition for rehearing.

Bates originally filed his petition for a writ of habeas corpus in the federal district court for the Middle District of Tennessee. Noting that that court and the district court for the Eastern District of Tennessee shared concurrent jurisdiction over the petition, Judge Neese transferred the proceeding to the Southern Division of the Eastern District pursuant to 28 U.S.C. § 2241(d). Following respondents' filing of an answer, the district court dismissed the habeas corpus petition. In its memorandum opinion, the district court accorded a presumption of correctness to the findings of the state Court of Criminal Appeals and relied on these findings in concluding that petitioner's claims were without merit. The district court discussed each of the grounds raised in Bates' petition, including sufficiency of evidence, peremptory challenges, evidence of divorce proceedings, alleged misconduct of prosecutor, a jury selection problem, and alleged ineffective assistance of counsel.

In his brief to this court, appellant asserts for the first time an alleged violation of the rule in Sandstrom v. Montana, 442 U.S. 510 (1979), as to jury instructions. We do not take cognizance of matters and issues not presented first to the district court. There may well be an exhaustion problem in any event with regard to the Sandstrom contention.

For the reasons stated in the memorandum opinion of Judge R. Allan Edgar, we AFFIRM the denial of the petition for habeas corpus.

 *

THE HONORABLE RICHARD B. McQUADE, JR., United States District Court for the Northern District of Ohio, sitting by designation