Joseph Kabeller, Petitioner-appellant, v. Carole J. Shiplevy, Supt., Respondent-appellee, 9 F.3d 108 (6th Cir. 1993)

Before: RYAN and SUHRHEINRICH, Circuit Judges, and JOINER, Senior District Judge.^* 

ORDER

Joseph Kabeller, a pro se Ohio prisoner, appeals a district court judgment dismissing his habeas corpus petition 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, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a). Appellee has informed the court that he will not be filing a brief.

In November 1989, a jury found Kabeller guilty of aggravated vehicular homicide for which he received a three to five year sentence. After exhausting his available state court remedies, Kabeller filed his petition for habeas relief essentially arguing that the trial court erroneously admitted testimony by a nurse concerning her observations of Kabeller's physical condition when she took a blood sample and that the trial court erroneously admitted the results of the blood sample because the sample was not voluntarily given. The district court dismissed the petition as without merit.

In his timely appeal, Kabeller continues to argue the merits of his petition. He requests oral argument.

Upon review, we conclude that the district court properly dismissed the petition because a de novo review of the record shows that Kabeller was not denied a fundamentally fair trial. See Lundy v. Campbell, 888 F.2d 467, 469-70 (6th Cir. 1989), cert. denied, 495 U.S. 950 (1990). The nurse's testimony does not give rise to a federal constitutional claim. See Olsen v. McFaul, 843 F.2d 918, 933 (6th Cir. 1988); Bell v. Arn, 536 F.2d 123, 125-26 (6th Cir. 1976). The blood sample was also properly admitted. Schmerber v. California, 384 U.S. 757, 766-72 (1966); see also Pennsylvania v. Muniz, 496 U.S. 582, 604 n. 19 (1990).

Accordingly, we deny the request for oral argument and affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.