Cargile v. Koehler

BEFORE: MERRITT, BROWN and KENNEDY, Circuit Judges Order This matter is before the Court upon an application for a certificate of probable cause. Petitioner was convicted of murder in the first degree and sentenced to life imprisonment. The Michigan Court of Appeals affirmed the conviction, People v. Cargile, 83 Mich. App. 361, 268 N.W.2d 258 (1978), and leave to appeal was denied by the Michigan Supreme Court. In this first federal habeas petition, it is alleged that the right to a fair trial was violated when the trial judge failed to instruct the jury that they could return a verdict of not guilty. The district court found the error did not amount to a constitutional violation and denied a writ. The court refused to issue a certificate of probable cause. Petitioner now seeks to appeal this judgment of dismissal.