Otha Gene Buchanan, Petitioner-appellant, v. al C. Parke, Warden, Respondent-appellee, 946 F.2d 894 (6th Cir. 1991)

Before NATANIEL R. JONES and DAVID A. NELSON, Circuit Judges, and ROSEN, District Judge.^* 

ORDER

Otha Gene Buchanan, a pro se Kentucky prisoner, appeals a district court judgment dismissing his petition for writ of habeas corpus filed pursuant to 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).

In 1983, Buchanan was convicted during separate trials of theft by unlawful taking over $100 and of being a persistent felony offender (PFO). The Kentucky Supreme Court affirmed Buchanan's conviction on direct appeal and his subsequent Ky.R.Crim.P. 11.42 motion was denied by the trial court, which denial was later affirmed by the Kentucky Court of Appeals.

Buchanan then filed the present petition for writ of habeas corpus. In his petition, Buchanan alleged that: 1) the trial court improperly failed to give instructions on a lesser included offense; 2) the trial court improperly admitted the testimony of a prosecution witness; 3) the prosecution did not establish Buchanan's birthdate by sufficient evidence; 4) he received ineffective assistance of counsel because counsel failed to object to the submission of exhibits concerning Buchanan's prior felonies to the jury during his PFO trial.

The district court determined that Buchanan's first three issues were without merit and dismissed the claims. However, the court further determined that his fourth claim raised a substantial issue, which required an evidentiary hearing.

The magistrate conducted the evidentiary hearing, at which Buchanan, the trial judge, and prosecutor testified. Following the hearing, the magistrate issued a report, which recommended dismissing Buchanan's remaining claim as meritless. Over Buchanan's objections, the district court adopted the magistrate's recommendation and dismissed the case. Buchanan has filed a timely appeal.

Initially, we note that Buchanan has not challenged on appeal the district court's resolution of his first three issues. Consequently, these issues are considered abandoned and not reviewable. See McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir. 1986).

As to Buchanan's remaining claim, we conclude that the district court's findings of fact are not clearly erroneous, McCall v. Dutton, 863 F.2d 454, 459 (6th Cir. 1988), cert. denied, 490 U.S. 1020 (1989), and that Buchanan failed to show that his counsel's assistance was so defective as to deprive Buchanan of a fundamentally fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Accordingly, we affirm the judgment for the reasons set forth in the magistrate's report and recommendation filed on July 2, 1990 and in the district court's order filed on October 12, 1990. Rule 9(b) (3), Rules of the Sixth Circuit.