Andre Mcgee, Petitioner-appellant, v. Norris Mcmackin, 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. 6, 1992

Before BOGGS and ALAN E. NORRIS, Circuit Judges, and CONTIE, Senior Circuit Judge.


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 petitioner's motion to extend appointment of counsel, the brief of petitioner, the letter from respondent advising that he will not file a brief, and the record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

McGee was found guilty of one count of aggravated burglary, two counts of aggravated robbery and two counts of felonious assault, all counts with specifications. The Ohio Court of Appeals affirmed the convictions and the Ohio Supreme Court denied McGee's motion to appeal.

McGee filed a 28 U.S.C. § 2254 habeas corpus petition in the district court raising eleven issues. The magistrate recommended that the petition be denied. After consideration of the objections to the magistrate's report and recommendation and de novo review, the district court denied the habeas corpus petition and dismissed the case. A motion for new trial was denied and McGee appealed.

On appeal, counsel for McGee raises eight issues: 1) denial of counsel of choice; 2) denial of effective assistance of counsel as the result of the late appointment; 3) denial of the right to present a defense as a result of the court's denial of a continuance to subpoena defense witnesses; 4) denial of right of confrontation and cross-examination by allowing the police officer to testify as to the identification of McGee when the witness who allegedly made the identification was unable to make an in-court identification; 5) denial of due process when the court did not instruct the jury as to all the elements of aggravated burglary; 6) denial of due process because there was insufficient evidence to prove all the elements of the offense; 7) that McGee was subjected to multiple punishments when he was multiply sentenced; and 8) that the district court erred in ruling that certain issues were not fairly presented to the state court.

Upon review, we affirm the district court's order for the reasons stated by the magistrate's October 26, 1990, report and recommendation and the district court's memorandum and opinion filed January 21, 1991. Rule 9(b) (3), Rules of the Sixth Circuit. The motion to extend appointment of counsel is granted.