Thomas R. Smith, Petitioner-appellant, v. Stephen T. Smith, Warden, Respondent-appellee, 943 F.2d 52 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 943 F.2d 52 (6th Cir. 1991)

Sept. 13, 1991

Before KEITH and BOYCE F. MARTIN, Jr., Circuit Judges, and TAYLOR, District Judge.* 


Thomas R. Smith, a pro se Kentucky prisoner, appeals the district court's dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Smith was convicted by a jury of first degree robbery and was sentenced to ten years imprisonment, which was later enhanced to twenty years when Smith entered a conditional guilty plea to being a persistent felony offender in the first degree (PFO I). His conviction was affirmed on direct appeal to the Kentucky Supreme Court.

Smith then filed his habeas petition alleging that: 1) he was denied a fair and impartial jury when a trial judge distributed a juvenile court survey to the entire jury pool during juror orientation; 2) he was entitled to a jury instruction on menacing as a lesser included offense of robbery; and 3) his PFO I conviction was not supported by valid prior convictions. The district court denied the petition, finding that Smith had not shown that he was prejudiced by the juvenile survey in that he had not demonstrated that his jury had been influenced by the survey; that an instruction on menacing was not warranted by the evidence presented; and there were sufficient prior convictions to support the PFO I conviction. On appeal, Smith reasserts his claims and requests the appointment of counsel.

Upon review, we affirm the district court's judgment for the reasons stated in the court's opinion dated April 24, 1991. The alleged errors did not deny Smith a fair trial. See Lundy v. Campbell, 888 F.2d 467, 469-70 (6th Cir. 1989), cert. denied, 110 S. Ct. 2212 (1990).

Accordingly, the request for counsel is denied, and the district court's judgment is hereby affirmed pursuant to Rule 9(b) (3), Rules of the Sixth Circuit.


The Honorable Anna Diggs Taylor, U.S. District Judge for the Eastern District of Michigan, sitting by designation