977 F. 2d 583 - Tapp v. Sowders

Herman Tapp, a pro se Kentucky state prisoner, moves for a remand and appeals from a district court 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).

Tapp was convicted following a jury trial of the first degree rape, first degree sodomy, and first degree sexual abuse of his niece, and the first degree sodomy, first degree sexual abuse and second degree assault of his nephew. The convictions for first degree rape and sodomy of the niece were reversed on direct appeal to the Kentucky Supreme Court. Tapp received a total sentence of twenty years imprisonment on the remaining counts. In this habeas petition, he raised thirteen assignments of error. The district court discussed the merits of the claims in its order dismissing the petition.

Tapp now moves for a remand to the district court because the counsel who represented him during a portion of the proceedings below allegedly failed to submit a memorandum in support of a motion for reconsideration. It is noted that the motion for reconsideration was over twenty pages in length plus attachments, and adequately set forth the arguments raised. Accordingly, the motion for remand is denied.

Moreover, upon review, it is concluded that this petition was properly dismissed, as Tapp was not denied a fundamentally fair trial. See Webster v. Rees, 729 F.2d 1078, 1079-80 (6th Cir.1984). Accordingly, the district court's order is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.