923 F. 2d 854 - Boone v. H Dallman

Gregory Boone, an Ohio state prisoner, requests the appointment of counsel on appeal from the district court order denying 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).

Boone entered a guilty plea to charges of aggravated burglary, drug possession, receiving stolen property, four counts of breaking and entering, and four counts of grand theft, with violence and aggravated felony specifications. He was sentenced to ten to twenty-five years on the aggravated burglary, consecutive to concurrent one and one-half year terms on each of the remaining counts. After pursuing a direct appeal in the state courts, he filed this petition arguing that the trial court erred in accepting his guilty plea to the specifications without first determining that the prior conviction on which they were based had been counseled.

The magistrate concluded, based on the record, that petitioner had in fact been represented by counsel at the prior conviction. Thus, whether the trial court inquired into this question was not an issue that would warrant habeas relief. See Smith v. Sowders, 848 F.2d 735, 738-39 (6th Cir.), cert. denied, 488 U.S. 866 (1988). The district court adopted the magistrate's recommendation to deny the petition over Boone's objections.

Upon consideration, this court affirms the district court's order for the reason stated by the magistrate and adopted by the district court. Rule 9(b)(5), Rules of the Sixth Circuit. The request for counsel is denied.