Unpublished Dispositionarvin Paul Ricker, Petitioner-appellant, v. Dewey Sowders, Warden, Respondent-appellee, 918 F.2d 179 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 918 F.2d 179 (6th Cir. 1990)

Nov. 15, 1990

Before KEITH, KENNEDY and SUHRHEINRICH, Circuit Judges.

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

Arvin Paul Ricker appeals the district court's judgment dismissing his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Ricker plead guilty to third degree burglary (five year sentence), first degree promoting contraband (five year sentence), first degree escape (twenty year sentence), and first degree persistent felony offender, with all sentences to be served concurrently. The burglary conviction was later vacated on appeal to the Grayson Circuit Court.

Ricker claimed that he was denied effective assistance of counsel because his court-appointed attorney represented him and his co-defendants, and that he was denied due process because the indictment did not allege that his prior felonies were committed successively.

After reviewing the answer, the magistrate's report and recommendation, and Ricker's objections, the district court dismissed the petition as meritless. On appeal, Ricker argues that he was denied effective assistance of counsel due to a conflict of interest when his counsel also represented his co-defendants.

As Ricker did not raise the due process issue in his objections to the magistrate's report and recommendation, it is waived on appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Smith v. Detroit Fed'n of Teachers Local Union 231, 829 F.2d 1370, 1373 (6th Cir. 1987). We have examined the remaining issue presented on appeal and find it to be without merit for the reasons stated by the district court. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).

Accordingly, for the reasons set forth in the district court's November 8, 1989, memorandum opinion, the district court's judgment is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.