803 F2d 719 Johnnie Flournoy Jr v. Ronald C Marshall

803 F.2d 719

JOHNNIE FLOURNOY, JR., Petitioner-Appellant
RONALD C. MARSHALL, Respondent-Appellee.

No. 86-3394.

United States Court of Appeals, Sixth Circuit.

Sept. 17, 1986.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

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BEFORE: MILBURN and BOGGS, Circuit Judges; HARVEY, Senior District Judge*



The petitioner appeals the judgment denying his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. He now moves for the appointment of counsel. That motion was referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit.


The petitioner is serving a 4-25 year sentence as a result of his 1980 guilty plea to a charge of armed robbery. He did not file a direct appeal, and the Ohio Court of Appeals denied a motion to file a delayed appeal a year later. The Ohio Supreme Court denied leave to appeal that order.


In the present action, the petitioner seeks to raise a total of three claims:


(1) The Ohio Court of Appeals denied him due process and equal protection of law by denying his motion to file a delayed appeal therein without permitting him to file a reply brief or reviewing the transcript of an evidentiary hearing held in the trial court;


(2) The grand jury which indicted him was improperly impaneled under Ohio statutory law; and


(3) The trial court and the Ohio Court of Appeals denied him due process and equal protection of law by denying him a copy of the transcript of the trial court evidentiary hearing.

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The district court held the second claim barred from habeas review by the fact of the petitioner's guilty plea, see Tollett v. Henderson, 411 U.S. 258 (1973), and found the remaining two issues without merit.


For the reasons stated in the Magistrate's Report and Recommendation of February 5, 1986, and the district court's order of April 7, 1986, we conclude the district court did not err in denying habeas corpus relief.


It is ORDERED that the motion for appointment of counsel be and it hereby is denied.


Upon examination of the record and the petitioner's informal brief, this panel agrees unanimously that oral argument is not needed in this appeal. Rule 34(a), Federal Rules of Appellate Procedure.


It is further ORDERED that the district court's judgment of April 7, 1986, be and it hereby is affirmed. Rule 9(d)(3), Rules of the Sixth Circuit.


The Honorable James Harvey, U.S. Senior District Judge for the Eastern District of Michigan, sitting by designation