Ronald Graham, Petitioner-appellant, v. Robert D. Hannigan, Warden and Attorney General of Kansas,respondents-appellees, 53 F.3d 342 (10th Cir. 1995)

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U.S. Court of Appeals for the Tenth Circuit - 53 F.3d 342 (10th Cir. 1995) April 27, 1995

Before MOORE, BARRETT and EBEL, Circuit Judges.


ORDER AND JUDGMENT1 

After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); Tenth Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Robert Graham (Graham), an inmate of the Hutchinson Correctional Facility at Hutchinson, Kansas, appearing pro se, appeals from the district court's denial of his 28 U.S.C. 2254 petition for a writ of habeas corpus.

The district court denied Graham's "Motion to Proceed on Appeal In Forma Pauperis and supporting affidavit, Motion for Certificate of Probable Cause, and Motion for Appointment of Counsel." We grant Graham's renewed motion to proceed on appeal in forma pauperis and for a certificate of probable cause simply to reach the merits.

Graham was convicted on March 20, 1987, following trial by jury, in the District Court of Geary County, Kansas, to one count each of possession of methamphetamine, marijuana, and cocaine. He was sentenced to one year county jail time on his convictions of possession of methamphetamines and marijuana. He was sentenced to life imprisonment (reduced to 15 years-to-life clemency) for commission of the crime of possession of cocaine, due to two prior narcotics convictions.

Graham exhausted all of his available state remedies prior to filing this action in the federal district court.

On appeal, Graham raises four issues of error attributable to the state trial court: (1) the trial court's out-of-court communication with the jury in defining a supplemental jury instruction regarding the legal definition of possession deprived plaintiff due process and equal protection of the law, (2) Fifth and Fourteenth Amendment rights were violated when the trial court erroneously admitted an allegedly made statement obtained involuntarily and coercively from plaintiff during an incustodial interrogation rendering the trial fundamentally unfair, (3) plaintiff was deprived of his Sixth Amendment right to effective assistance of counsel which denied him a fundamentally fair trial, and (4) the trial court committed error through the usage of a prior Arkansas conviction for trial and sentencing purposes wherein the Arkansas conviction was obtained in violation of the Sixth Amendment, and the Arkansas court failed to make a determination on the record, that the waiver of counsel or plea of guilty were knowing and voluntary or that a factual basis for the plea existed in addition to the Arkansas court failing to make an entry of judgment, finding Graham guilty, prior to pronouncing sentence. Graham requests that we require the Respondent to answer the allegations in this action and [file a] brief in support; hold such evidentiary hearings as may be deemed necessary or appropriate; issue an order that the Court will grant a Writ of Habeas Corpus unless the state holds a new trial within a specified time; and issue a Writ of Habeas Corpus freeing him from his unconstitutional confinement by and through the Kansas conviction and the unconstitutionally void Arkansas conviction.

Each of Graham's contentions were addressed and decided adversely to him by the district court in a thorough Memorandum and Order. Our review of the record shows that the district court did not err in denying Graham's petition for a writ of habeas corpus.

We affirm for substantially the reasons set forth in the district court's Memorandum and Order dated and filed January 11, 1995.

AFFIRMED.

 1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470