Danny O. Ball v. Dewey Sowders, Warden, Northpoint Training Center, Attorney General, Commonwealth of Kentucky , 885 F.2d 871 ( 1989 )

885 F.2d 871

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Danny O. BALL, Petitioner-Appellant,
v.
Dewey SOWDERS, Warden, Northpoint Training Center,;
Attorney General, Commonwealth of Kentucky,
Respondents-Appellees.

No. 89-5241.

United States Court of Appeals, Sixth Circuit.

Sept. 25, 1989.

1

Before MERRITT and KRUPANSKY, Circuit Judges, and JAMES L. GRAHAM, District Judge.*

ORDER

2

Petitioner, Danny O. Ball, appeals an order of the district court which granted in part and denied in part his petition for a writ of habeas corpus. He now moves for the appointment of counsel. 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 record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

In March 1982, Ball was found guilty of first degree robbery and first degree rape and was sentenced to a term of 40 years imprisonment. Upon the unsuccessful conclusion of his direct appeal and a proceeding for post-conviction relief under Ky.R.Crim.P. 11.42, he filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 in the District Court for the Eastern District of Kentucky. In support of his request for that relief, Ball maintained that: 1) his conviction for rape was invalid as it was not supported by sufficient evidence and was the product of an erroneous jury instruction; 2) each of his convictions had been obtained in violation of his right to due process because the trial court had failed to declare a mistrial after the jury heard his codefendants enter guilty pleas; and 3) he had not received effective assistance of counsel. On the basis of its magistrate's report, the district court determined that the rape conviction was invalid due to an improper jury instruction and therefore granted the petition for habeas relief as to that offense. The district court, however, concluded that Ball's remaining claims were without merit and denied the petition as to those issues. Ball then filed this appeal for those portions of the district court's order which partially denied his petition for a writ of habeas corpus.

4

After careful review of the record, the court concludes that the district court did not err in its disposition of the petition for a writ of habeas corpus. Accordingly, the motion for appointment of counsel is hereby denied and the district court's final order is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

*

The Honorable James L. Graham, U.S. District Judge for the Southern District of Ohio, sitting by designation