902 F. 2d 32 - Clark v. Makel

Before BOYCE F. MARTIN, Jr. and RALPH B. GUY, Jr., Circuit Judges; and DAVID D. DOWD, Jr., District Judge.*

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).

Michael Allen Clark, a pro se Michigan prisoner, appeals from the district court's order dismissing his habeas corpus action filed pursuant to 28 U.S.C. Sec. 2254.

Pursuant to a plea bargain, Clark entered pleas of guilty to charges of absconding on bond and to being an accessory after the fact to child cruelty. Clark also entered a plea of no contest to a charge of extortion. In exchange for his pleas, charges of attempted murder, larceny, assault and battery, one count of extortion, and a habitual offender charge were dismissed. Following unsuccessful appeals in the Michigan courts, Clark filed his habeas petition alleging: 1) that his pleas to the charges were not knowingly, intelligently and voluntarily made due to the misleading advice of counsel; 2) that the trial court erroneously sentenced him as an aider and abettor rather than as an accessory after the fact to child cruelty; and 3) that his trial counsel was ineffective due to his failure to make appropriate objections and motions.

After a review of the magistrate's report and Clark's objections, the district court adopted the magistrate's recommendation and dismissed the case. Clark has filed a timely appeal, challenging the district court's dismissal. In addition, he has also filed a motion for the appointment of counsel on appeal.

Upon review, we affirm the district court's judgment for the reasons stated in the magistrate's report and the district court's order.

Accordingly, the motion for the appointment of counsel is hereby denied, and the district court's judgment is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.