Unpublished Dispositionalbert Rembert, Petitioner-appellant, v. Terry L. Morris, Supt., Respondent-appellee, 925 F.2d 1465 (6th Cir. 1991)

Before KENNEDY and NATHANIEL R. JONES, Circuit Judges, and CHURCHILL, Senior District Judge.^* 

ORDER

The 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, briefs of the parties and petitioner's motions requesting appointment of counsel, a new trial, release pending trial and a copy of the trial transcript, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Petitioner was convicted following a jury trial in 1978 for aggravated murder and possession of criminal tools. He was sentenced to a term of life imprisonment for the aggravated murder and a consecutive term of two to five years for the possession of criminal tools. Counsel filed an unsuccessful direct criminal appeal in which none of the issues in the instant habeas corpus petition were raised.

Petitioner filed three unsuccessful post-conviction motions. In petitioner's habeas corpus petition, he argued that there was racial discrimination in the selection of the jury, he was not permitted to call two court-appointed investigators to testify on his behalf, the trial judge made errors in ruling on his post-conviction motion, there was a double jeopardy violation because the municipal court dismissed the charges against him, and a key prosecution witness committed perjury at trial. He argued that these claims demonstrate that counsel was ineffective.

The magistrate filed a report and recommendation to which petitioner objected. The district court determined that, although petitioner exhausted state court remedies, the claims were barred by res judicata because they were not raised at trial or on direct appeal and that the ineffective assistance of counsel exception to the rule did not apply because prejudice was not shown. See Strickland v. Washington, 466 U.S. 668, 687 (1984). In addition, it determined that habeas corpus was not proper to challenge alleged errors in ruling on the post-conviction motion. See Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986).

Petitioner appealed and raised the same issues as presented in his habeas corpus petition.

Based upon careful consideration of the record, this court has concluded that the district court properly dismissed petitioner's 28 U.S.C. § 2254 habeas corpus action. Accordingly, the decision of the district court is affirmed for the reasons stated in the district court's June 6, 1990, order. Rule 9(b) (5), Rules of the Sixth Circuit. The petitioner's motions are denied.