Unpublished Dispositionphilip Golzer, Petitioner-appellant, v. William Seabold, Warden, Respondent-appellee, 933 F.2d 1008 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 933 F.2d 1008 (6th Cir. 1991) May 28, 1991

Before NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges, and JOINER, Senior District Judge.* 

ORDER

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).

Philip Golzer appeals the district court's order dismissing his 28 U.S.C. § 2254 state habeas corpus petition. Following a jury trial, Golzer was convicted of receiving stolen property over $100. He received a one year sentence. The trial court suspended this sentence and entered a judgment of probation for three years. Golzer did not file a direct appeal of this conviction or sentence.

On September 29, 1982, and while on probation, the petitioner pled guilty in Fayette Circuit Court to a charge of receiving stolen property and was sentenced to five years imprisonment. On this basis, a probation violation warrant was issued for his arrest, and, on November 5, 1982, his probation was revoked and the one year sentence reinstated to run consecutively to the five year sentence. His subsequent Ky.R.Crim.P. 11.42 motion was overruled, and he filed the instant habeas corpus petition. In this petition, Golzer claimed that he was denied effective assistance of counsel during his trial and with respect to his right to a direct appeal and during the proceedings relating to his post-conviction collateral attack of his 1981 conviction.

After reviewing the magistrate's report and recommendation, the district court dismissed the petition, deciding that it was meritless. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

Golzer raises essentially the same arguments on appeal. In addition, he argues that the district court improperly denied his motion for an evidentiary hearing regarding his petition.

Upon consideration, we affirm the dismissal of the petition for the reasons stated in the magistrate's report and recommendation filed August 9, 1990, as adopted by the district court in its order filed September 26, 1990. Rule 9(b) (3), Rules of the Sixth Circuit. As Golzer is not entitled to relief, the district court properly declined to conduct an evidentiary hearing. See Baker v. United States, 781 F.2d 85, 92 (6th Cir.), cert. denied, 479 U.S. 1017 (1986).

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The Honorable Charles W. Joiner, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation