Michael H. Van Natta v. Warden, Northpoint Training Center Attorney General of Kentucky, Respondents , 871 F.2d 1089 ( 1989 )

871 F.2d 1089

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Michael H. VAN NATTA, Petitioner-Appellant,
v.
WARDEN, NORTHPOINT TRAINING CENTER; Attorney General of
Kentucky, Respondents- Appellees.

No. 88-5931.

United States Court of Appeals, Sixth Circuit.

Feb. 24, 1989.

Before WELLFORD and ALAN E. NORRIS, Circuit Judges, and GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.

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 briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

Petitioner sought habeas corpus relief under 28 U.S.C. Sec. 2254 in challenging the constitutionality of two 1985 convictions for theft by deception. The district court dismissed the petition and this appeal followed. The parties have briefed the issues, petitioner proceeding pro se.

3

Upon consideration, we find petitioner's appeal to be without merit. The record amply supports the district court's conclusion that the trial court did not commit constitutional error in admitting a picture book supposedly shown to the complaining witnesses. We also find sufficient evidence in the record to support the convictions under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Petitioner's third ground for relief, that a prior bankruptcy adjudication operated to preclude the underlying criminal prosecution, was not presented on direct appeal to the Kentucky courts although it could have been. This claim cannot now be presented to Kentucky courts because of procedural waiver. It was thus incumbent upon petitioner to demonstrate cause and prejudice for the state court waiver. Failing in this duty, the claim cannot be considered in federal habeas corpus. Wainwright v. Sykes, 433 U.S. 72 (1977).

4

Accordingly, the district court's judgment is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.