905 F. 2d 1538 - Justice v. W McMackin

Before MILBURN and DAVID A. NELSON, Circuit Judges; and ENGEL, Senior Circuit Judge.

ORDER

Roger L. Justice appeals an order of the district court which dismissed his petition for a writ of habeas corpus. He now moves for bail pending appeal. Upon review of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

In August 1986, Justice was found guilty of three counts of aggravated robbery and was sentenced to consecutive terms of six to twenty-five, six to twenty-five, and seven to twenty-five years imprisonment. Because the jury found that he had used a firearm during the commission of those offenses, the trial court directed that Justice actually serve at least nine years of those sentences. Upon the unsuccessful conclusion of his direct appeal in state court, he filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 in the District Court for the Northern District of Ohio. In support of his request for that relief, he alleged that his convictions were invalid on grounds of: 1) insufficient evidence, 2) double jeopardy, 3) the withholding of exculpatory evidence, 4) improper joinder of the offenses, 5) the failure to compel the presence of a witness at trial, 6) the denial of his right to a speedy trial, 7) variance of proof from the allegations contained in the indictment, 8) the allocation of the burden of proof as to an affirmative defense, 9) validity of the indictment, 10) failure to instruct on a lesser included offense, and 11) his competency to stand trial. A magistrate, however, determined that none of those arguments was of sufficient merit to warrant the granting of habeas relief. The district court, over Justice's objections, agreed and adopted the magistrate's report and recommendation in full. After the entry of an order dismissing the petition for a writ of habeas corpus, Justice filed this appeal.