966 F. 2d 1454 - Ermas William Thomas v. Al C Parke

Ermas William Thomas, a pro se Kentucky prisoner, appeals the district court's order dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. § 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).

A jury convicted Thomas in January 1988 of two counts of second degree criminal possession of a forged instrument with intent to defraud, one count of theft by deception over $100, and one count of being a first degree persistent felony offender (PFO). He was sentenced to concurrent terms of two years imprisonment for each of the substantive counts, enhanced to ten years because of the PFO conviction. The Kentucky Court of Appeals affirmed Thomas's conviction on July 28, 1989 and the Kentucky Supreme Court denied further review.

In his present petition, Thomas listed eleven grounds for relief which the district court grouped into four basic categories: (1) insufficient evidence to support the convictions, (2) improper admission of evidence of other criminal activity, (3) improper or defective jury instructions, and (4) exposure to double jeopardy. Both the petitioner and the respondent filed motions for summary judgment. The district court entered a memorandum and order on June 27, 1991, dismissing Thomas's petition with prejudice. The district court found that ample direct and circumstantial evidence was presented to establish every essential element of the offenses, that the evidence of other crimes was properly admitted and did not deny Thomas a fundamentally fair trial, that the jury instructions did not infect the fairness of the entire trial, and that the constitutional protection against double jeopardy was not violated because each of the charged offenses requires proof of separate elements.

On appeal, Thomas continues to argue the merits of his grounds for relief. He requests the appointment of counsel in his brief.

Upon review, we affirm the district court's order because Thomas has not shown that his trial was fundamentally unfair or that the proceeding resulted in his unjust confinement. See Williams v. Withrow, 944 F.2d 284, 288 (6th Cir.1991), petition for cert. filed (Dec. 12, 1991).

Accordingly, we deny the request for counsel. The district court's order dismissing the petition is affirmed for the reasons stated in its accompanying memorandum opinion entered June 27, 1991. Rule 9(b)(3), Rules of the Sixth Circuit.