John L. Burns v. Elton Scott , 859 F.2d 921 ( 1988 )

859 F.2d 921

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 L. BURNS, Petitioner-Appellant,
v.
Elton SCOTT, Respondent-Appellee.

No. 87-1876.

United States Court of Appeals, Sixth Circuit.

Oct. 17, 1988.

Before KEITH, NATHANIEL R. JONES and MILBURN, Circuit Judges.

ORDER

1

This Michigan state prisoner moves for bail in his appeal from the district court's judgment denying his petition for writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. The case 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

After a jury trial, petitioner was convicted of second degree murder and felony firearm. He received a ten to twenty-five year sentence on the murder charge, and a mandatory, consecutive two year sentence on the firearm charge. Petitioner pursued relief in the Michigan state courts, and thereafter filed the instant habeas petition raising the following four claims: 1) denial of a fair trial when the prosecution failed to produce a res gestae witness; 2) denial of a fair trial when the trial court refused to question the jury on possible exposure to media coverage; 3) denial of a fair trial when the court refused to instruct the jury on Michigan's statutory presumption of intoxication; and 4) denial of due process when the court, during sentencing, considered a prior misdemeanor conviction. The district court denied the petition finding no error of constitutional magnitude to warrant habeas relief.

3

Upon review, we find no error in the district court's analysis. Regarding the first three claims, we conclude that petitioner received a fundamentally fair trial. The fourth claim has been abandoned because it was not reasserted on appeal.

4

Accordingly, the motion for bail is hereby denied, and the district court's judgment is hereby affirmed for the reasons set forth in its memorandum opinion dated August 31, 1987. Rule 9(b)(5), Rules of the Sixth Circuit.