Unpublished Dispositionhenry Roger Graves, Petitioner-appellant, v. Norris W. Mcmackin, Supt., Respondent-appellee, 940 F.2d 659 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 940 F.2d 659 (6th Cir. 1991) Aug. 6, 1991

Before BOYCE F. MARTIN, Jr. and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.


ORDER

Henry Roger Graves moves for the appointment of counsel on appeal from the dismissal of his petition for a writ of habeas corpus filed under 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, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Following a jury trial in the Cuyahoga County, Ohio, Court of Common Pleas, Graves was convicted of aggravated robbery with a firearm specification, two counts of felonious assault with firearm specifications, and possession of a weapon under a disability. Graves was sentenced to a cumulative sentence of 10 to 25 years imprisonment and a 3 year mandatory minimum sentence with respect to the firearm specifications. Grave's convictions were affirmed by the Ohio Court of Appeals on direct appeal except for the firearm specifications which were vacated. Thereafter, the Ohio Supreme Court denied leave to appeal.

Next, Graves filed his habeas petition in the district court by counsel alleging: (1) that he was denied his right to a speedy trial; (2) that procedures used to identify him were tainted; (3) that exculpatory information was withheld by the prosecution; (4) that evidence of his prior record was impermissibly introduced; (5) that counsel's closing argument was unduly restricted; (6) that the prosecution made improper comments during closing argument; (7) that the jury was not appropriately instructed; and (8) that insufficient evidence of felonious assault was introduced at trial. The state filed a return of writ and Graves filed a traverse. The magistrate recommended that the petition be dismissed, and Graves filed objections. The district court adopted the magistrate's recommendation and dismissed the petition.

Upon consideration, we will affirm the judgment of the district court. Petitioner's claims that the trial court's instructions to the jury were inadequate do not arise to the level of a constitutional deprivation. See Henderson v. Kibbe, 431 U.S. 145, 154 (1977). Petitioner's remaining claims are without merit for the reasons stated in the magistrate's report and recommendation filed October 10, 1990, and adopted by the district court in its memorandum and order filed December 6, 1990.

Accordingly, the motion for appointment of counsel is denied, and the judgment of the district court is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.