Ricky Gordon Yacks v. Richard Johnson , 19 F.3d 20 ( 1994 )

19 F.3d 20

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Ricky Gordon YACKS, Petitioner-Appellant,
v.
Richard JOHNSON, Respondent-Appellee.

No. 93-2177.

United States Court of Appeals, Sixth Circuit.

March 2, 1994.

Before: KENNEDY and GUY, Circuit Judges; and CONTIE, Senior Circuit Judge.

ORDER

1

Ricky Gordon Yacks appeals a district court judgment denying his petition for a writ of habeas corpus filed under 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, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

Following a bench trial in the Genessee County, Michigan, Circuit Court, petitioner was convicted of felony murder in September 1970. Petitioner was sentenced to a term of life imprisonment without the possibility of parole. However, petitioner was granted a new trial after the Michigan Court of Appeals directed a hearing into whether impeachment of a prosecution witness was impermissibly restricted. See People v. Yacks, 196 N.W.2d 827, 829-30 (Mich.Ct.App.1972).

3

Thereafter, petitioner again was convicted of felony murder following a jury trial in the Genessee Circuit Court and again was sentenced to life imprisonment without parole. The Michigan Court of Appeals affirmed the conviction on direct appeal, see People v. Yacks, 212 N.W.2d 249 (Mich.Ct.App.1973), and the Michigan Supreme Court denied a delayed application for leave to appeal.

4

Then, petitioner filed his petition for a writ of habeas corpus in the district court asserting claims he asserted in the Michigan courts in the context of a motion for a new trial: (1) that he was denied his Fourth Amendment rights when the trial court refused to suppress evidence obtained from an unlawful search; and (2) he was denied his Sixth Amendment right to effective assistance of counsel in challenging the unlawfully obtained evidence. Respondent answered in opposition to the petition, and petitioner filed a reply. The magistrate judge recommended that the petition be denied as without merit, and petitioner filed objections. The district court adopted the magistrate judge's recommendation and denied the petition.

5

Upon consideration, we affirm the judgment of the district court for the reasons stated in the magistrate judge's report and recommendation filed September 15, 1992, as adopted by the district court in its opinion filed on June 16, 1993. Petitioner's contention that ineffective assistance of counsel deprived him of the opportunity to fully and fairly assert his Fourth Amendment claim in the state courts simply lacks a factual basis. See Kimmelman v. Morrison, 477 U.S. 365, 374-83 (1986).

6

Accordingly, the judgment of the district court is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.