Kimble G. Johnson v. Dewey Sowders, Warden, Attorney General of Kentucky , 899 F.2d 1222 ( 1990 )

899 F.2d 1222

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

No. 89-6123.

United States Court of Appeals, Sixth Circuit.

April 12, 1990.

1

Before BOYCE F. MARTIN, Jr., and NATHANIE R. JONES, Circuit Judges, and JOHN FEIKENS, Senior District Judge.*

ORDER

2

Petitioner, Kimble Johnson, appeals a judgment of the district court which dismissed his petition for a writ of habeas corpus. He now moves for the appointment of counsel. Upon review of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

In May 1986, a jury in the Anderson County, Kentucky Circuit Court found petitioner guilty of first degree robbery, first degree rape, first degree sodomy, theft by unlawful taking of goods valued at over $100, kidnapping and attempted murder. For the first three of those offenses, he was sentenced to consecutive terms of 20, 20 and 15 years imprisonment. In addition, petitioner was sentenced to concurrent terms of 5, 15 and 20 years imprisonment as punishment for the crimes of theft by unlawful taking, kidnapping and attempted murder. After the unsuccessful conclusion of a direct appeal before the Kentucky Supreme Court, 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 he maintained that: 1) his convictions had been obtained in violation of his right to confront a hostile witness because the trial court had improperly allowed the use of a deposition in lieu of that person's in-court testimony; and 2) there was insufficient evidence to sustain his conviction for theft of goods valued at over $100. A magistrate, however, determined that both those claims were without merit and recommended the dismissal of the petition for habeas relief. Despite petitioner's objections, the district court agreed and entered judgment in favor of respondents. Petitioner then filed this appeal.

4

Based upon a careful review of the record in light of the arguments advanced in the briefs, the court has concluded that the district court correctly dismissed the petition for a writ of habeas corpus. Accordingly, the motion for appointment of counsel is denied and the district court's final judgment is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

*

The Honorable John Feikens, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation