Joseph Sonny Leflore, Petitioner-appellant, v. People of the State of Michigan, Respondent-appellee, 954 F.2d 724 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 954 F.2d 724 (6th Cir. 1992) Feb. 12, 1992

Before DAVID A. NELSON and BOGGS, Circuit Judges, and KRUPANSKY, Senior Circuit Judge.


ORDER

Joseph Sonny LeFlore, a pro se Michigan state prisoner, moves for the appointment of counsel and other miscellaneous relief on appeal from the district court judgment dismissing 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).

LeFlore was convicted following a bench trial of unarmed robbery and assault with intent to murder, and was sentenced to concurrent terms of ten to fifteen years and life imprisonment. In this, his fourth petition for federal habeas relief, he raised a claim that his conviction violated double jeopardy in that he had been charged twice for a single transaction. The magistrate judge recommended that the petition be denied as an abuse of the writ, and the district court adopted this recommendation.

Upon review, it is concluded that this petition was properly denied as an abuse of the writ, as the new ground raised could have been argued in LeFlore's three previous habeas petitions. Rule 9(b), Rules Governing Section 2254 Cases in the U.S. District Courts. In order to preclude a finding of abuse of the writ, LeFlore was required to show cause and prejudice for his failure to raise the claim previously, or that a denial of the petition would result in a fundamental miscarriage of justice. See McCleskey v. Zant, 499 U.S. ----, 111 S. Ct. 1454, 1470 (1991). LeFlore failed to establish any cause which prevented him from raising this claim previously, or any colorable claim of innocence. Accordingly, the motion for miscellaneous relief is denied, and the district court's judgment is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.