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919 F2d 140 Gordon v. Sowders

919 F.2d 140

Choice Eugene GORDON, Petitioner-Appellant,
v.
Dewey SOWDERS, Respondent-Appellee.

No. 89-6418.

United States Court of Appeals, Sixth Circuit.

Nov. 30, 1990.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before BOYCE F. MARTIN, Jr., and NATHANIEL R. JONES, Circuit Judges; and ENGEL, Senior Circuit Judge.

ORDER

1

Choice Eugene Gordon, a pro se Kentucky prisoner, appeals the district court's dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

Gordon was convicted of murder and was sentenced to thirty years imprisonment. The trial court held a suppression hearing where Gordon's confession was ruled voluntary. His conviction was affirmed by the Kentucky Supreme Court. Gordon then filed his habeas petition alleging: (1) his right to be free from unreasonable search and seizure was violated; (2) the Miranda v. Arizona, 384 U.S. 436 (1966), warnings given by the arresting officers were insufficient; (3) the confession should have been suppressed because it was admitted in violation of Kentucky's Anti-Sweating statute, Ky.Rev.Stat. Sec. 422.110; and (4) the trial court's refusal to suppress his confession was highly prejudicial.

3

The magistrate recommended that the petition be dismissed, finding that there was no fourth amendment seizure because Gordon voluntarily consented to accompany the officers to police headquarters, and at no time during the questioning did Gordon indicate his desire to withdraw his consent. The magistrate also found no fifth amendment violation because the Miranda warnings were adequate; Ky.Rev.Stat. Sec. 422.110 was not applicable as Gordon was neither "seized" nor "in custody" at the time he confessed; and the confession was voluntarily given. The district court adopted the magistrate's recommendation after reviewing Gordon's objections.

4

On appeal, Gordon reasserts his claims and requests the appointment of counsel.

5

Upon review, we shall affirm the district court's judgment for the reasons stated in the magistrate's report dated October 11, 1989, as adopted by the district court on October 31, 1989.

6

Accordingly, the request for counsel is denied and the district court's judgment is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.