
    Kenneth WYNIEMKO, Petitioner-Appellant, v. David SMITH, Warden, Ryan Correctional Facility; Michigan Department of Corrections, Respondents-Appellees.
    No. 00-1617.
    United States Court of Appeals, Sixth Circuit.
    March 23, 2001.
    Before SILER, MOORE, and CLAY, Circuit Judges.
   ORDER

Kenneth Wyniemko, a pro se Michigan prisoner, appeals a district court order dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

In 1994, a jury convicted Wyniemko of one count of breaking and entering, one count of armed robbery, and fifteen counts of first degree criminal sexual conduct. Wyniemko was sentenced to concurrent sentences of ten to fifteen years of imprisonment on the breaking and entering conviction, fifteen to twenty-five years of imprisonment on the armed robbery conviction, and forty to sixty years of imprisonment on each criminal sexual conduct conviction.

After exhausting his available state court remedies, Wyniemko filed his habeas corpus petition with the district court alleging ineffective assistance of trial and appellate counsel. On November 1, 1999, the parties stipulated to dismiss, without prejudice, Wyniemko’s unexhausted claim of ineffective assistance of appellate counsel. Subsequently, the district court dismissed the petition as meritless finding that Wyniemko’s trial counsel was not ineffective.

In his timely appeal, Wyniemko’s continues to argue that his trial attorney was ineffective for several reasons.

In the appeal of a habeas corpus decision, a district court’s legal conclusions are reviewed de novo while its findings of fact are reviewed for clear error. DeLisle v. Rivers, 161 F.3d 370, 380 (6th Cir.1998).

Upon review, we conclude that Wyniemko’s attorney was not ineffective. A defendant claiming ineffective assistance of counsel must show that trial counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed a defendant by the Sixth Amendment, and that such errors prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Constitution imposes a standard of reasonableness. Id. The court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. at 689. The courts presume that a lawyer is competent and, therefore, the burden rests on the petitioner to demonstrate a constitutional violation. United States v. Pierce, 62 F.3d 818, 833 (6th Cir.1995).

Our review of the record shows that Wyniemko’s attorney vigorously represented his client. There is no merit to Wyniemko’s claims of attorney errors constituting ineffective assistance of counsel.

Accordingly, we affirm the district court’s order. Rule 34(j)(2)(C), Rules of the Sixth Circuit.  