758 F. 2d 652 - James Meredith Cummings v. Robert Redman

BEFORE: LIVELY, Chief Judge; ENGEL, Circuit Judge; and RUBIN Chief District Judge.*

Cummings requests counsel and moves to expedite the appeal from the district court's judgment denying his petition for a writ of habeas corpus. This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and Cummings' brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Cummings was convicted by a Detroit, Michigan jury of second degree murder and received a life sentence. Cummings' petition raises right to counsel, severance, and evidentiary issues.

The district court found that Cummings agreed to representation by co-defendant's counsel concerning a jury request, thereby resulting in a knowing and voluntary waiver of his right to counsel. United States v. Clayton, 418 F.2d 1274, 1276 (6th Cir. 1969), cert. denied, 399 U.S. 931 (1970). The court also found that Cummings' counsel waived the severance issue by not specifically pointing to a conflict of interest with the co-defendant's theory of defense. Cuyler v. Sullivan, 446 U.S. 335, 346-8 (1979). Finally, the district court found that the witness who changed his testimony was not coerced by any actions of the judge, the prosecutor, or the police officers.

After an examination of the record, we agree with the conclusions of the district court. The motion for counsel is denied, and the judgment is affirmed under Rule 9(d)(3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument. The motion to expedite the appeal is denied as moot.