9 F.3d 109 (6th Cir. 1993), 93-5288, Stephens v. O'Dea

Docket Nº:93-5288.
Citation:9 F.3d 109
Party Name:John Lee STEPHENS, Petitioner-Appellant, v. Michael O'DEA, Warden, Defendant-Appellee.
Case Date:October 21, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 109

9 F.3d 109 (6th Cir. 1993)

John Lee STEPHENS, Petitioner-Appellant,

v.

Michael O'DEA, Warden, Defendant-Appellee.

No. 93-5288.

United States Court of Appeals, Sixth Circuit

October 21, 1993

         Editorial Note:

         This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

        Appeal from the United States District Court for the Eastern District of Kentucky, No. 92-00069; Wilhoit, J.

        E.D.Ky.

        AFFIRMED.

        Before: MILBURN and NELSON, Circuit Judges; and GILMORE, Senior District Judge. [*]

        PER CURIAM:

        Petitioner John Lee Stephens, a Kentucky prisoner, appeals from the judgment of the district court dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On appeal, the sole issue presented for review is whether the district court erred in denying habeas corpus relief upon Stephens' claim that his due process right to a fair trial was violated by the trial court's admonition to his counsel during closing argument. For the reasons set out below, we affirm.

        I.


Notes:

        On April 19, 1990, a grand jury, in Lewis County, Kentucky, returned a six-count indictment against John Lee Stephens and one co-defendant.

[1] Stephens was indicted for two counts of first degree burglary in violation of Ky.Rev.Stat. § 511.020; one count of attempted murder in violation of Ky.Rev.Stat. §§ 506.010 and 507.020; one count of receiving stolen property over $100 in violation of Ky.Rev.Stat. § 514.110; one count of theft by unlawful taking over $100 in violation of Ky.Rev.Stat. § 514.030; and one count of possession of a handgun by a convicted felon in violation of Ky.Rev.Stat. § 527.040. Following arraignment and the filing of various pre-trial motions, a jury trial commenced on August 9, 1990 in the Lewis County, Kentucky, Circuit Court, Judge James W. Lyon, Sr. presiding.

        After several days of trial, the jury returned a verdict against Stephens finding him guilty of attempted murder, burglary in the first degree, possession of a handgun by a convicted felon, theft by unlawful taking over $100, and receiving stolen property over $100. The trial court sentenced petitioner Stephens to an aggravated sentence of imprisonment for forty (40) years on the above convictions as follows: (1) a twenty year sentence on the conviction for attempted murder; (2) a fifteen year consecutive sentence on the conviction for burglary in the first degree; (3) a five year sentence on the conviction for possession of a handgun by a convicted felon, to run consecutively to the sentences for attempted murder and burglary in the first degree; (4) a five year sentence on the conviction for unlawful taking over $100, to run concurrently with the attempted murder sentence; and (5) a five year sentence on the conviction for receiving stolen property over $100, to run concurrently with the sentence for attempted murder.

        After a final judgment and sentence was entered, petitioner Stephens filed a direct appeal to the Supreme Court of Kentucky. On appeal to the Supreme Court of Kentucky, Stephens argued, inter alia, that the trial court improperly admonished his trial counsel for making inaccurate statements concerning evidence during closing argument. The admonition at issue before the Supreme Court of Kentucky, which also forms the basis for Stephens' appeal to this Court, occurred as follows during the closing argument of defense counsel:

MR. CURTIS [counsel for defense]: ... But, the most important thing about Mr. Gleason's testimony was who were suspects. He had been investigating Talbert and Marshall ever since 1988, and that he suspected them to be involved in a burglary ring. Did he ever mention John Lee Stephens' name as being a suspect in any burglary? No. But, you can rest assured that if he had any information that Mr. Stephens was a suspect in a burglary, the Commonwealth would have presented that to you, ladies and gentlemen.

MR. DOUGLAS [counsel for the Commonwealth]: Judge, I'm going to object to that. That's an inaccurate statement.

JUDGE LYON: Objection sustained. Mr. Curtis, I admonish you to not make any more reference to Mr. Gleason did not have John Lee Stephens as a suspect. As I recall, Mr. Douglas did ask a question, and there was an objection, and I sustained that objection.

MR. CURTIS: Your Honor, I object to that characterization.

        J.A., 161-162. Although the trial court's admonition was arguably erroneous, the Supreme Court of Kentucky affirmed the judgment of conviction. In an unpublished opinion issued on October 24, 1991, the Court rejected Stephens' claims of error, including his claim that the trial judge improperly admonished...

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