Robert Hesler v. Michael O'dea, Warden , 991 F.2d 795 ( 1993 )

991 F.2d 795

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Robert HESLER, Petitioner-Appellant,
v.
Michael O'DEA, Warden, Respondent-Appellee.

No. 93-5152.

United States Court of Appeals, Sixth Circuit.

April 1, 1993.

E.P.Ky. No. 92-00068, Bertelsman, J.

1

E.D.Ky.

2

DENIED.

ORDER

3

Robert Hesler appeals from a district court judgment dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The receipt of the certified record has been construed as an application for a certificate of probable cause pursuant to Fed.R.App.P. 22(b).

4

In 1983, Hesler was convicted by a jury of burglary and for being a persistent felony offender in the first degree. He was sentenced to twenty years' imprisonment. This is Hesler's second petition for a writ of habeas corpus. In his first petition, Hesler alleged, among other things, that he was denied his Sixth Amendment right to an impartial jury because the complaining witness was a cousin of one of the jurors. In the present petition, Hesler now alleges that two of the jurors in his trial were cousins of the complaining witness. Respondent filed a motion to dismiss, arguing that Hesler's successive petition is an abuse of the writ. The magistrate judge's report recommended dismissal of the petition. Over Hesler's objections, the district judge adopted the magistrate judge's report and recommendation as the findings of fact and conclusions of law of the court, and dismissed Hesler's petition.

5

An individual seeking a certificate of probable cause is required to make a substantial showing of a denial of a federal constitutional right. See Barefoot v. Estelle, 463 U.S. 880, 893 (1983). The record before this court does not meet this standard.

6

Accordingly, the application for a certificate of probable cause is hereby denied. Rule 9(b)(3), Rules of the Sixth Circuit.