Unpublished Dispositionronald Ray Green, Petitioner-appellant, v. Martin Makel, Respondent, Warden, Dunes Correctionalfacility, Respondent-appellee, 902 F.2d 33 (6th Cir. 1990)

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U.S. Court of Appeals for the Sixth Circuit - 902 F.2d 33 (6th Cir. 1990)

May 3, 1990


Before RALPH B. GUY, Jr., and DAVID A. NELSON, Circuit Judges; and GEORGE CLIFFTON EDWARDS, Jr., Senior Circuit Judge.


ORDER

Ronald Ray Green, a pro se Michigan prisoner, appeals the judgment of the district court dismissing his petition for a 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).

A Michigan jury found Green guilty of breaking and entering with intent to commit larceny. Mich.Comp.Laws Ann. Sec. 750.110 (West Supp.1989-1990). He pleaded guilty to habitual offender, third offense. Mich.Comp.Laws Ann. Sec. 769.11 (West Supp.1989-1990).

In his petition for writ of habeas corpus, Green asserted five grounds for relief: 1. the evidence was insufficient to support a conviction; 2. the prosecutor was guilty of misconduct in overcharging petitioner; 3. the prosecutor improperly commented in final argument on petitioner's failure to testify; 4. petitioner was denied the effective assistance of counsel; and 5. the on-scene identification of petitioner was the fruit of an unlawful seizure.

The case was submitted to a magistrate who, in an exhaustive report and recommendation, concluded that Green had not established grounds for habeas relief, and recommended that the petition be denied on its merits. The district court reviewed the case in light of Green's objections to the magistrate's report and approved and adopted the report and recommendation as the opinion of the court.

On appeal, Green reasserts that he was denied effective assistance of counsel; that the evidence was insufficient to support a conviction; and that the prosecutor's closing argument improperly infringed on his right against self-incrimination.

Upon review, we find no error. Initially, we note that Green's appellate brief is silent regarding two of his original challenges. His brief does not argue that he was overcharged by the prosecutor or that his on-scene identification by a witness was improper. Therefore, these issues are not reviewable. See McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir. 1986).

The district court's judgment regarding the remaining issues is hereby affirmed for the reasons set forth in the magistrate's report and recommendation dated May 17, 1989. Rule 9(b) (5), Rules of the Sixth Circuit.