915 F. 2d 1570 - Bout v. Michigan Department of Corrections

Harry Bout, a pro se Michigan state prisoner, moves for the appointment of counsel on appeal from the denial of his petition for a writ of habeas corpus filed under 28 U.S.C. Sec. 2254. The 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 briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Bout was convicted following a jury trial of first degree murder and felony firearm, and was sentenced to life imprisonment and two years, respectively. His conviction was affirmed on direct appeal.

The magistrate liberally construed this petition as being limited to fifteen issues which had been exhausted in the state courts. The issues were examined at length, and the magistrate concluded that none of them warranted habeas relief. Bout filed objections to the magistrate's report which specifically addressed only three of the issues. The district court addressed these three issues in its opinion, and then adopted the magistrate's recommendation to deny the petition. This appeal followed.

Because only specific objections are preserved for appeal, we conclude that Bout has waived appellate review of all but the three issues on which he filed objections to the magistrate's report. Smith v. Detroit Fed. of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). The three issues which are before this court all concern evidentiary rulings by the state court. Such issues do not warrant habeas relief unless they result in the denial of a fundamentally fair trial. See Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir.1988). Review of the record in this case does not demonstrate that Bout was denied a fair trial. Accordingly, all pending motions are denied, and the district court's order is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.