Richard Smith v. Norris W. McMackin Supt.

934 F.2d 322 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Richard SMITH, Petitioner-Appellant, v. Norris W. McMACKIN, Supt., Respondent-Appellee. No. 90-3828. United States Court of Appeals, Sixth Circuit. June 3, 1991. Before KENNEDY and SUHRHEINRICH, Circuit Judges, and WELLFORD, Senior Circuit Judge. ORDER — 1 — Richard Smith, an Ohio state prisoner who is represented by counsel, appeals the district court's order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 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). — 2 — Following a jury trial, petitioner was convicted, with his female co-defendant, of aggravated burglary with specifications, in violation of Ohio Rev.Code Sec. 2911.11; grand theft with specifications, in violation of Ohio Rev.Code Sec. 2913.02; kidnapping with specifications, in violation of Ohio Rev.Code Sec. 2905.01; and attempted grand theft with specifications, in violation of Ohio Rev.Code Secs. 2923.02 and 2913.01. He received concurrent sentences of imprisonment totalling ten to twenty-five years. His conviction was affirmed on direct appeal. — 3 — Thereafter, petitioner filed the instant petition for a writ of habeas corpus raising the following nine claims: — 4 — 1. Denial of his right to counsel of his choice. — 5 — 2. Improper joinder of offenses. — 6 — 3. Denial of his right to due process when evidence concerning petitioner's past criminal record was brought before the jury by a prosecution witness. — 7 — 4. Denial of his right of confrontation. — 8 — 5. Insufficient evidence to convict. — 9 — 6. Improper jury instructions. — 10 — 7. Ineffective assistance of counsel. — 11 — 8. Denial of due process based on the fact that a motion for a new trial was overruled. — 12 — 9. Denial of due process of law due to various sentencing errors. — 13 — After reviewing the response, the magistrate's report and recommendation, and the parties' objections, the district court denied habeas relief. This appeal followed. — 14 — Upon review, we conclude that the district court properly denied petitioner's habeas petition as petitioner was not denied a fundamentally fair trial. See Lundy v. Campbell, 888 F.2d 467, 469-70 (6th Cir.1989), cert. denied, 110 S.Ct. 2212 (1990). — 15 — Accordingly, the district court's order is hereby affirmed pursuant to Rule 9(b)(3), Rules of the Sixth Circuit, and for the reasons stated in the magistrate's full report and district court's opinion.