Branham v. Seabold, 92-6006

• Citation: 985 F.2d 559
• Decision Date: 25 January 1993
• Docket Number: No. 92-6006,92-6006
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Alvin B. BRANHAM, Petitioner-Appellant, v. William SEABOLD, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 559

985 F.2d 559

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Alvin B. BRANHAM, Petitioner-Appellant, v. William SEABOLD, Warden, Respondent-Appellee.

No. 92-6006.

United States Court of Appeals, Sixth Circuit.

Jan. 25, 1993.

Before KENNEDY and SUHRHEINRICH, Circuit Judges, and WELLFORD, Senior Circuit Judge.

ORDER

Alvin B. Branham requests the appointment of counsel in his brief on appeal from the dismissal of 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).

Following a jury trial in the Floyd County, Kentucky, Circuit Court in July 1988, Branham was convicted of being a felon in possession of a handgun, carrying a concealed deadly weapon and receiving stolen property. Branham was sentenced to five years on each count with the sentence for receiving stolen property to run consecutively to the weapons sentences. The convictions were affirmed by the Kentucky Court of Appeals on direct appeal and the Kentucky Supreme Court denied discretionary review. A subsequent motion for post-conviction relief was denied by the state trial court and Branham did not appeal.

Thereafter, Branham filed his petition for habeas corpus relief in the district court alleging: (1) that insufficient evidence supports each of his convictions; and (2) that his conviction both of being a felon in possession of a handgun and of carrying a concealed deadly weapon violates double jeopardy. The magistrate judge recommended that the petition be dismissed, and Branham failed to file objections after being notified to do so. The district court adopted the magistrate judge's recommendation and dismissed the petition. The district court issued a certificate of probable cause.

Upon consideration, we conclude that petitioner waived his right to appeal by failing to file objections to the magistrate judge's report and recommendation. See Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987).

Accordingly, the request for the appointment of counsel is denied and the judgment of the district court is affirmed. Rule 9(b)(3),...