Lanny Wayne Miller v. Gene A. Scroggy, Warden

842 F.2d 332, 1988 U.S. App. LEXIS 3426, 1988 WL 23702

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 18, 1988
• Docket: 87-5911
• Status: Unpublished

Opinion

842 F.2d 332

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

No. 87-5911.

United States Court of Appeals, Sixth Circuit.

March 18, 1988.

ORDER

Before: KRUPANSKY and WELLFORD, Circuit Judges; and GILMORE, 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 record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

The petitioner, a Kentucky prisoner, appeals the judgment of the district court which dismissed as being successive his third petition for writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. In each of his three petitions for habeas corpus relief, the petitioner alleged that his trial counsel was ineffective in failing to directly appeal his 1970 conviction for murder. The district court, on the magistrate's recommendation, dismissed petitioner's most recent petition pursuant to Rule 9(b), Rules Governing 28 U.S.C. Sec. 2254 Cases.

Upon review of the record and the briefs of the parties, we conclude that the district court properly dismissed the petitioner's current petition as being successive. See Sanders v. United States, 373 U.S. 1 (1963).

Accordingly, the judgment of the district court entered on June 26, 1987, is affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit, for the reasons contained in the magistrate's report of May 29, 1987.

* The Honorable Horace W. Gilmore, U.S. District Judge for the Eastern District of Michigan, sitting by designation