841 F. 2d 1126 - Hobbs v. Dutton

The petitioner appeals the order denying his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. The receipt of the record herein is construed as an application to this Court for a certificate of probable cause. Rule 22(b), Federal Rules of Appellate Procedure.

A Tennessee jury convicted the petitioner in 1981 for the offenses of first degree murder and assault with intent to commit murder in the first degree causing bodily injury. He was sentenced to concurrent terms of life imprisonment. On direct appeal, the Tennessee Court of Criminal Appeals affirmed the conviction and the Tennessee Supreme Court denied leave to appeal thereto. Two subsequent post-conviction actions also proved unsuccessful.

The petitioner presented a total of three claims in the present federal habeas action:

(1) Trial counsel rendered ineffective assistance because he failed to present evidence of a psychological examination the petitioner believes would have shown the lack of mental capacity to form the required element of intent;

(2) The jury instructions were inadequate as to issues of passion, provocation, insanity and mental illness; and

(3) The prosecutor suppressed evidence of the petitioner's mental condition.

The district court concluded the first and third claims were without merit and that the second claim was barred from federal habeas review because of procedural default in the state courts and the petitioner's failure to show prejudice as a result of that failure. This appeal followed.

Upon examination of the record and for the reasons stated by the district court in its thorough memorandum opinion of August 14, 1987, we conclude the petitioner's claims do not present such substantial issues as to warrant further appellate review herein.

It therefore is ORDERED that the application for a certificate of probable cause is denied.