Unpublished Disposition, 905 F.2d 1540 (9th Cir. 1990)

MEMORANDUM^** 

Daniel Hankins appeals from the district court's denial of a motion to clarify or amend a previous order denying Hankins' motion to vacate a grant of summary judgment.

Hankins moved, pursuant to Rule 52(b) of the Federal Rules of Civil Procedure, for the district court to reconsider its denial of Hankins' motion to vacate a grant of summary judgment on three bases. First, Hankins argued that a flight instruction was given at Hankins' trial, and Hankins' counsel's failure to object to this erroneous flight instruction constituted ineffective assistance. Second, Hankins argued that the prosecutor elicited testimony from a witness that the prosecutor knew was false. Hankins claims the use of this testimony in the trial violated Hankins' right to due process. Third, Hankins claimed that he was denied the opportunity to object to the magistrate's report and recommendation. Hankins argues that he should have been permitted to file delayed objections.

The district court judge considered Hankins' motion for clarification, and held first, that Hankins had failed to file objections of any kind to the magistrate's report and recommendation. Second, the court re-reviewed Hankins' trial transcripts and concluded that, contrary to Hankins' contention, the trial judge did not give a flight instruction. Moreover, the district court noted that Hankins had not raised the giving of a flight instruction as a ground for habeas corpus relief, nor did he appeal the issue to the Arizona Appellate Courts. On these grounds, the district court denied Hankins' motion for clarification. Hankins has not shown that the district court erred in denying his request for clarification.

AFFIRMED.