Unpublished Dispositionmerritt Lawson, Petitioner-appellant, v. Ralph Evitts, Warden, Blackburn Correctional Institute,respondent-appellee, 889 F.2d 1087 (6th Cir. 1989)

Before MERRITT, Chief Judge, KENNEDY, Circuit Judge, and R. ALLAN EDGAR, District Judge.^* 

ORDER

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

Petitioner filed an action for habeas corpus relief under 28 U.S.C. § 2254 in which he challenged the constitutionality of his 1982 Kentucky convictions for obscuring the identity of a machine and receiving stolen property in violation of Ky.Rev.Stat. Secs. 514.120 and 514.110. The district court ultimately dismissed the petition and this appeal followed. The parties have briefed the issues.

The appeal is meritless. Petitioner's claim, that the prosecuting attorney made an improper reference to his failure to testify in his defense, was waived through procedural default. Harris v. Reed, 109 S. Ct. 1038, 1044 n. 10 (1989). Petitioner has not shown the "cause and prejudice" necessary to overcome the presumption of waiver. Wainwright v. Sykes, 433 U.S. 72, 87-90 (1977). Petitioner's second claim, that the prosecuting attorney's reference to John Hinckley irreparably tainted his trial, did not demonstrate a denial of fundamental fairness so as to warrant habeas corpus relief. Donnelly v. DeChristoforo, 416 U.S. 637, 643-45 (1974).

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