David Murphy v. Arnold R. Jago, Supt.

Before ENGEL and NORRIS, Circuit Judges; and COHN, District Judge*.

This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

In this action under 28 U.S.C. Sec. 2254, petitioner challenges the constitutionality of a 1983 conviction for aggravated burglary. The district court denied issuance of the relief sought and petitioner has appealed. On appeal the parties have submitted briefs, petitioner proceeding without benefit of counsel.

Upon consideration, we find ourselves in agreement with the district court. Petitioner's claim that the absence of a victim impact statement (O.R.C. Sec. 2947.051) somehow violated a federal constitutional right is without merit. The error was one of state law and, on the facts, appeared to work no prejudice. His second claim is that he was denied due process of law by being excluded from that portion of the proceedings wherein he was given a sentence of imprisonment to be served consecutively to an earlier felony conviction. This claim is also meritless. On the facts, petitioner and his counsel were afforded a meaningful opportunity to argue against consecutive sentences. Petitioner's counsel did, in fact, do so. The trial court's failure to so advise petitioner at the sentencing hearing in the instant cause is not an error of federal constitutional magnitude. For these reasons, and for the reasons set forth in the opinion on review, we affirm.

It appearing therefore that the question on which decision of the cause depends is so unsubstantial as not to need further argument, Rule 9(d)(3), Rules of the Sixth Circuit,

IT is ORDERED that the final order of the district court be and it is hereby affirmed.