Unpublished Dispositionernest Miller Givan, Petitioner-appellant, v. Steven T. Smith, Respondent-appellee, 860 F.2d 1079 (6th Cir. 1988)

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U.S. Court of Appeals for the Sixth Circuit - 860 F.2d 1079 (6th Cir. 1988) Oct. 20, 1988

Before NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges and BAILEY BROWN, Senior Circuit Judge.


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 the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Petitioner filed this action for federal habeas corpus relief under 28 U.S.C. § 2254 attacking the constitutionality of 1979 convictions for rape and first degree burglary. The magistrate to whom the matter was assigned recommended the petition be dismissed. The district court adopted the recommendation, over petitioner's objections, and the instant appeal followed. On appeal the parties have briefed the issues, petitioner proceeding pro se.

Upon consideration we hold that the district court correctly dismissed this habeas corpus petition. Our review of the record reveals petitioner's right to the effective assistance of counsel was not abridged at trial or on direct appeal. Petitioner's due process claim is meritless to the extent it is dependent on his assistance of counsel contentions and is unsupported by other grounds. The claims that the offenses charged constituted a single offense are without foundation as the facts and law support the district court's conclusion that petitioner committed two separate distinct offenses in the course of his illegal entry and subsequent sexual assault of June 25, 1978.

Accordingly, the district court's judgment is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.