Unpublished Dispositionstacey Sellers, Petitioner-appellant, v. Terry L. Morris, Supt., Respondent-appellee, 898 F.2d 154 (6th Cir. 1990)

Before RALPH B. GUY, Jr. and BOGGS, Circuit Judges, and PAUL V. GADOLA, District Judge.^* 

ORDER

Stacey Sellers, an Ohio prisoner proceeding with benefit of counsel, appeals the judgment of the district court dismissing his petition for writ of habeas corpus filed pursuant to 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 the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

This case was remanded to the district court by our decision in Sellers v. Morris, 840 F.2d 352 (6th Cir. 1988). In that case, we held that the district court erred by applying the presumption of correctness pursuant to 28 U.S.C. § 2254(d) without first determining whether the state court's factual findings are "fairly supported by the record." On remand, the district court concluded that the findings of the Ohio Court of Appeals are fairly supported by the record and are therefore presumed to be correct pursuant to 28 U.S.C. § 2254(d). The court dismissed the petition for habeas relief.

Upon review, we find no error. The district court's determination that the Ohio appellate court's factual findings are fairly supported by the record is not clearly erroneous.

Accordingly, for the reasons set forth in the district court's April 14, 1989, memorandum opinion, we hereby affirm the judgment pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.