Darrell Litchford v. Gene Scroggy, Warden

865 F.2d 1268, 1989 U.S. App. LEXIS 80, 1989 WL 776

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 6, 1989
• Docket: 88-5539
• Status: Unpublished

Opinion

865 F.2d 1268

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Darrell LITCHFORD, Petitioner-Appellant,
v.
Gene SCROGGY, Warden, Respondent-Appellee.

No. 88-5539.

United States Court of Appeals, Sixth Circuit.

Jan. 6, 1989.

Before BOYCE F. MARTIN, Jr. and NATHANIEL R. JONES, Circuit Judges, and JOHN FEIKENS, Senior District Judge.*

ORDER

Darrell Litchford, a pro se Kentucky prisoner, appeals the district court's order dismissing his habeas corpus petition 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 consideration of the record and the briefs, the panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

In his habeas corpus petition, Litchford raised issues concerning (1) the trial court's failure to instruct the jury on a lesser included offense and (2) the admissibility of certain evidence. On appeal, he reasserts the first of these claims.

Upon consideration, we defer to the Kentucky state court's interpretation of Kentucky law which dictates that petitioner was in the requisite detention necessary for a finding of second degree escape. See Wainwright v. Goode, 464 U.S. 78, 84 (1983) (per curiam); Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir.1986). Hence, we find that the requested instruction on third degree escape was not warranted and therefore not required under the due process clause. See Ferrazza v. Mintzes, 735 F.2d 967, 968 (6th Cir.1984).

Additionally, we conclude that because petitioner failed to raise the admissibility of evidence claim in the present appeal, it is not subject to this court's review. See McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir.1986).

Accordingly, the district court's order is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

* The Honorable John Feikens, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation