James Lee Turnbill v. Donal Campbell, Warden, State of Tennessee

889 F.2d 1088 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. James Lee TURNBILL, Petitioner-Appellant, v. Donal CAMPBELL, Warden, State of Tennessee, et al., Respondents-Appellees. No. 89-5356. United States Court of Appeals, Sixth Circuit. Nov. 21, 1989. — 1 — Before KRUPANSKY and RYAN, Circuit Judges, and EDWARD H. JOHNSTONE, Chief District Judge.* ORDER — 2 — This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). — 3 — James Lee Turnbill, a pro se Tennessee prisoner, appeals the district court's order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. — 4 — After filing several state appeals, Turnbill filed his petition challenging his jury conviction of first degree murder, which resulted in a sentence of life imprisonment. Turnbill specifically alleged that: (1) he was denied his Sixth Amendment right to a speedy trial; (2) his fourth amendment rights were violated when the police, without a warrant, broke down the door of the apartment where he was staying; and (3) the evidence presented at trial was insufficient to sustain his conviction. Turnbill also sought the appointment of counsel to assist him in presenting his constitutional claims. — 5 — Following a review of the files and records, the district court denied the petition. Turnbill has filed a timely appeal asserting only issues two and three and claiming that the district court should have appointed counsel for him. — 6 — Upon review we conclude that the district court's judgment should be affirmed for the reasons stated in its opinion and order. — 7 — Turnbill cannot assert his fourth amendment claims in this habeas corpus proceeding because he received a full and fair opportunity to present these claims in the state courts. Stone v. Powell, 428 U.S. 465, 494 (1976). His conviction of first degree murder is based upon sufficient evidence, see Jackson v. Virginia, 443 U.S. 307, 319 (1979), which is clear from a review of the facts as found by the state Court of Appeals which may be presumed correct given petitioner's failure to challenge the facts as erroneous by clear and convincing evidence. Sumner v. Mata, 455 U.S. 591, 592 (1982) (per curiam); Nichols v. Perini, 818 F.2d 554, 557 (6th Cir.1987). The district court also properly denied Turnbill's request for the appointment of counsel. — 8 — Accordingly, the district court's judgment is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit. Footnotes [-s] * The Honorable Edward H. Johnstone, Chief U.S. District Judge for the Western District of Kentucky, sitting by designation