940 F. 2d 659 - France v. E Humphreys

Before KENNEDY and MILBURN, Circuit Judges, and WILHOIT, District Judge.*

Willie B. France, an Ohio state prisoner, appeals through counsel the dismissal of his petition for a writ of habeas corpus filed under 28 U.S.C. Sec. 2254. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

France was convicted following a jury trial of aggravated trafficking in dilaudid with a firearm specification and permitting drug abuse. He was sentenced to five to fifteen years imprisonment on the trafficking offense, three years consecutive on the firearm specification, and six months concurrent on the drug abuse conviction. After pursuing state court remedies, he filed this habeas petition. The district court adopted the magistrate's recommendation to dismiss the petition. On appeal, France argues that the trial court erred in permitting an amendment of the indictment, gave a prejudicial instruction on accomplice testimony, and erroneously refused to instruct the jury on entrapment.

Upon consideration, this panel finds that the petition was properly dismissed. An obvious typographical error in an indictment may be corrected upon motion to the court. United States v. Bush, 659 F.2d 163, 167 (D.C.Cir.1981). In light of the evidence of guilt in this case, the instruction on accomplice testimony did not infect the trial to such a degree as to violate due process. See Olsen v. McFaul, 843 F.2d 918, 927-28 (6th Cir.1988). Finally, the trial court correctly found that there was insufficient evidence to support a jury instruction on entrapment.

Accordingly, the district court's order is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.