William Thomas Weaver v. Warden Michael Dutton , 848 F.2d 195 ( 1988 )

848 F.2d 195

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

No. 87-6324.

United States Court of Appeals, Sixth Circuit.

May 13, 1988.

Before LIVELY, MERRITT and BOGGS, Circuit Judges.

ORDER

1

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).

2

Petitioner appeals the dismissal of his petition for writ of habeas corpus filed under 28 U.S.C. Sec. 2254. Petitioner filed his petition for habeas relief in the district court on September 13, 1985, alleging that his first degree murder conviction is not supported by sufficient evidence of intent to murder. Before a responsive pleading was filed, petitioner submitted a memorandum in support of his petition in which he argued that the erroneous introduction into evidence of a photograph deprived him of a fundamentally fair trial. He did not seek to amend his petition.

3

The district court properly presumed the facts of petitioner's case as recited by the Tennessee Court of Criminal Appeals to be correct pursuant to 28 U.S.C. Sec. 2254(d) because petitioner did not claim that this presumption should not apply. Loveday v. Davis, 697 F.2d 135 (6th Cir.1983). The district court determined that the evidence as summarized by the state court was such that a rational trier of fact could have accepted as established beyond a reasonable doubt the essential element of intent. See Jackson v. Virginia, 443 U.S. 307 (1979); Brown v. Davis, 752 F.2d 1142, 1144 (6th Cir. (1985). Upon consideration, we agree with the district court's determination.

4

Petitioner's claim relating to the introduction of a photograph into evidence was not properly raised by his petition and therefore was not addressed by the district court. Thus, this issue is not before this court on appeal.

5

The judgment of the district court is affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.