Wayne A. Timmons, Petitioner-appellant, v. Melody Turner, Warden, Respondent-appellee, 99 F.3d 1140 (6th Cir. 1996)

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US Court of Appeals for the Sixth Circuit - 99 F.3d 1140 (6th Cir. 1996) Oct. 15, 1996

Before: SUHRHEINRICH and DAUGHTREY, Circuit Judges; JOHNSTONE, District Judge.* 

ORDER

Wayne A. Timmons, an Ohio prisoner proceeding pro se, appeals a district court judgment denying his petition for a 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).

On July 8, 1980, a Pickaway County jury found Timmons guilty of complicity in aggravated murder, with the specification that the murder was committed for hire. He was sentenced to life in prison. The Ohio Court of Appeals affirmed Timmons's conviction on September 21, 1983, and the Ohio Supreme Court denied further review. A discussion of the state post-conviction proceedings and two prior federal habeas corpus proceedings is set forth in the district court's opinion and order and will not be repeated here.

In support of the present petition for habeas corpus relief, Timmons claims that he was denied the effective assistance of appellate counsel. The district court denied the petition in an opinion and order dated December 20, 1996. This timely appeal followed.

Initially, we note that although the respondent argued in the district court that Timmons's present habeas petition constitutes an abuse of the writ, she has abandoned the argument on appeal; therefore, the argument will not be reviewed. See Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir. 1991), cert. denied, 503 U.S. 939 (1992).

Upon review, we conclude that the district court properly denied Timmons's petition for a writ of habeas corpus because Timmons has not shown that the proceedings against him were fundamentally unfair. Clemmons v. Sowders, 34 F.3d 352, 356 (6th Cir. 1994). None of the instances of alleged ineffective assistance of appellate counsel rise to the level of a constitutional dimension. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

Accordingly, the district court's judgment is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.

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The Honorable Edward H. Johnstone, United States District Judge for the Western District of Kentucky, sitting by designation