Earnest Davis v. Joseph Abramajtys, Warden at E.C. Brooks Correctional Facility

992 F.2d 1216

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Earnest DAVIS, Petitioner-Appellant,
v.
Joseph ABRAMAJTYS, Warden at E.C. Brooks Correctional
Facility, Respondent-Appellee.

No. 92-2103.

United States Court of Appeals, Sixth Circuit.

May 3, 1993.

Before GUY and NELSON, Circuit Judges, and WELLFORD, Senior Circuit Judge.

ORDER

1

Earnest Davis, a Michigan state prisoner, requests the appointment of counsel on appeal from the dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. This 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

Davis was convicted following a jury trial of first degree felony murder and possession of a firearm in the commission of a felony. He received the mandatory consecutive sentences of life and two years imprisonment. On direct appeal in the state courts, the felony firearm conviction was vacated and the first degree murder conviction was affirmed. Davis then filed this petition for habeas relief, arguing that he was entitled to a jury instruction on the lesser-included offense of involuntary manslaughter. The district court adopted the magistrate judge's recommendation to dismiss the petition.

3

Upon review, the dismissal of this petition is affirmed for the reason stated by the magistrate judge and adopted by the district court. Rule 9(b)(3), Rules of the Sixth Circuit. The request for counsel is denied.