John Alfred Duncombe, III v. Dale Foltz

865 F.2d 257 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. John Alfred DUNCOMBE, III, Petitioner-Appellant, v. Dale FOLTZ, Respondent-Appellee. No. 88-1269. United States Court of Appeals, Sixth Circuit. Dec. 8, 1988. Before MERRITT and RALPH B. GUY, Jr., Circuit Judges, and GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge. ORDER [1] John Alfred Duncombe appeals the district court's judgment dismissing his habeas corpus petition filed under 28 U.S.C. Sec. 2254. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). [2] Duncombe claimed that his convictions for armed robbery and unlawful possession of a firearm violate due process because they are based on: 1) tainted evidence obtained from an impermissively suggestive line-up; 2) erroneous evidentiary rulings and jury instructions; and 3) a denial of his sixth amendment right of confrontation. The district court denied relief concluding that Duncombe received a fundamentally fair trial. [3] Upon consideration, we conclude the district court properly dismissed petitioner's action. Testimony based on the pretrial line-up was reliable and properly admitted as evidence at trial. See Neil v. Biggers, 409 U.S. 188, 196 (1972); Owen v. Foltz, 797 F.2d 294 (6th Cir.1986). Duncombe failed to state a cognizable claim for relief regarding his challenges to the trial court's evidentiary rulings and jury instructions as they did not render his trial fundamentally unfair. See Matlock v. Rose, 731 F.2d 1236, 1242 (6th Cir.1984), cert. denied, 470 U.S. 1050 (1985); Long v. Smith, 663 F.2d 18, 23 (6th Cir.1981). And, Duncombe was not denied his sixth amendment right of confrontation. [4] Accordingly, the judgment of the district court is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.