William E. Whitmer v. Harry K. Russell, Supt. , 898 F.2d 155 ( 1990 )

898 F.2d 155

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 E. WHITMER, Petitioner-Appellant,
v.
Harry K. RUSSELL, Supt., Respondent-Appellee.

No. 88-3702.

United States Court of Appeals, Sixth Circuit.

March 14, 1990.

1

Before KENNEDY and RYAN, Circuit Judges, and GEORGE C. SMITH, District Judge.*

ORDER

2

William E. Whitmer, an Ohio state prisoner, appeals through counsel the dismissal of his petition for a writ of habeas corpus filed under 28 U.S.C. Sec. 2254. 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

Whitmer was convicted, following a jury trial, of four counts of disseminating matter harmful to juveniles, gross sexual imposition, and statutory rape. The Ohio appellate court vacated the sentences on two counts of disseminating matter harmful to juveniles, and affirmed the remainder of the convictions; the state supreme court declined to review the case. In this petition for a writ of habeas corpus, it was argued that admission of certain evidence deprived Whitmer of a fair trial, that the convictions of both gross sexual imposition and statutory rape resulted in a double jeopardy violation, and that Whitmer was deprived of his right to a unanimous jury verdict. After de novo review in light of Whitmer's objections, the district court adopted the magistrate's recommendation to dismiss the petition.

4

Upon consideration, we conclude that admission of the challenged evidence did not render the trial fundamentally unfair, so as to warrant habeas relief. See Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir.1988). Therefore, we need not decide whether this issue was exhausted in the state courts. We further find Whitmer's remaining arguments to be meritless.

5

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

*

The Honorable George C. Smith, U.S. District Judge for the Southern District of Ohio, sitting by designation