Robert Salerno v. Ronald C. Marshall, Supt.

875 F.2d 867 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Robert SALERNO, Petitioner-Appellant, v. Ronald C. MARSHALL, Supt., Respondent-Appellee. No. 88-3917. United States Court of Appeals, Sixth Circuit. May 31, 1989. — 1 — Before MILBURN and BOGGS, Circuit Judges, and WILLIAM O. BERTELSMAN, District Judge.* ORDER — 2 — Robert Salerno appeals the district court's judgment denying his Fed.R.Civ.P. 60(b) motion for relief from judgment. The appeal has been referred to a panel pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the certified record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). — 3 — Salerno essentially sought reconsideration of the denial of his prior habeas corpus petition filed under 28 U.S.C. Sec. 2254. Relying on Alexander v. Foltz, 838 F.2d 140 (6th Cir.), cert. denied, 108 S.Ct. 2017 (1988), Salerno argues that this court changed the law and held prejudice is established whenever a Sandstrom-type instruction is given to a jury. — 4 — Upon consideration, we affirm the district court's judgment. Relief from judgment is not warranted in this case because Salerno has not established any change or development in the law. He received the same analysis and consideration in his case as the petitioner in Alexander. Contrary to his argument, the holding in Alexander does not establish that a violation of due process always results from a Sandstrom instruction. See Alexander, 838 F.2d at 146-47. Rather, the holding in Alexander reiterates that prejudice must be determined on a case-by-case basis with consideration given to the jury charge as a whole and to the evidence in the case. — 5 — Accordingly, the district court's judgment is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit. Footnotes [-s] * The Honorable William O. Bertelsman, U.S. District judge for the Eastern District of Kentucky, sitting by designation