815 F2d 705 Price v. Sowders

815 F.2d 705

John M. PRICE, Jr., Petitioner-Appellant,
v.
Dewey SOWDERS, Warden, and Attorney General, State of
Kentucky, Respondents- Appellees.

No. 86-6115.

United States Court of Appeals, Sixth Circuit.

March 18, 1987.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

ORDER


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1

This appeal has been referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the record and appellant's informal brief, this panel unanimously agrees that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

2

Appellant contends that his indictment on a persistent felony offender charge was inadequate because it did not incorporate a previous indictment to which the recidivist charge was applied. However, a recidivist charge is independent of the underlying offense to which it relates. Oyler v. Boles, 368 U.S. 448 (1962). A careful review of the record reveals that the persistent felony offender indictment provided appellant fair notice of the recidivist charge against him. See Payne v. Janasz, 711 F.2d 1305, 1312 (6th Cir.), cert. denied, 464 U.S. 1019 (1983); Blake v. Morford, 563 F.2d 248 (6th Cir.1977), cert. denied, 434 U.S. 1038 (1978).

3

Therefore, appellant's motion for appointment of counsel is denied and the judgment of the district court is affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.