817 F2d 757 Pender v. C Davis

817 F.2d 757

Frank James PENDER, Petitioner-Appellant,
v.
Herman C. DAVIS (Warden), Respondent-Appellee.

No. 86-6124.

United States Court of Appeals, Sixth Circuit.

May 8, 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 LIVELY, Chief Judge, and ENGEL and KRUPANSKY, Circuit Judges.

ORDER


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1

The petitioner moves for counsel on appeal from the district court's order dismissing his petition for writ of habeas corpus. Pursuant to Rule 9(a), Rules of the Sixth Circuit, this appeal has been referred to a panel of the court for consideration. After examination of the record and briefs, the panel unanimously concludes that oral argument is not needed. Rule 34(a), Fed. R. App. P.

2

In the habeas corpus petition, four issues were presented to the district court. The magistrate entered a report and recommendation which recommended that the petition be dismissed. Petitioner objected to the report and recommendation only as it applied to the issue that Deputy Marlar's statement that petitioner remained silent at the time of arrest violated his constitutional rights and that the admission of that statement should not be considered harmless error. The district court, finding that the evidence of petitioner's guilt was overwhelming, dismissed the petition for the reasons stated in the magistrate's report and recommendation.

3

The issue on appeal regarding the petitioner's post-arrest silence is without merit. In Doyle v. Ohio, 426 U.S. 610 (1976), it was determined that post-arrest silence cannot be used to impeach petitioner's testimony which offered an exculpatory explanation of his conduct. Petitioner did not testify or offer an exculpatory explanation of his conduct.

4

Admission of testimony regarding post-arrest silence may be harmless error. A witness' testimony mentioning post-arrest silence is harmless error when the reference to the silence was neither made nor elicited by the prosecution, where the prosecutor did not highlight the reference, where the comment did not go to the heart of the defense, where there was no further mention of the silence and there was strong evidence of the defendant's guilt. United States v. Shaw, 701 F.2d 367 (5th Cir. 1983), cert. denied, 465 U.S. 1067 (1984). This court concludes that the district court did not err in dismissing the habeas corpus petition.

5

The motion for counsel is denied. Upon examination of the record and the petitioner's informal brief, the order of the district court is affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.