Sidney McGowan moves for the appointment of counsel on appeal from the dismissal of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Following a jury trial in the Fayette County, Kentucky, Circuit Court in March 1990, McGowan was convicted of two counts of burglary, two counts of unlawful transaction with a minor, two counts of theft, and of being a persistent felony offender. McGowan was sentenced to a cumulative sentence of fifteen years imprisonment. McGowan's convictions were affirmed by the Kentucky Court of Appeals on direct appeal, and the Kentucky Supreme Court denied discretionary review.

Next, McGowan filed his petition for a writ of habeas corpus in the district court alleging that he was denied due process when the trial court refused to grant him a continuance on the day of trial so that a mental evaluation could be conducted to determine his competency to stand trial. Respondent moved to dismiss the petition or for summary judgment and McGowan responded in opposition. The magistrate judge recommended that respondent's motion be granted and McGowan filed objections. The district court adopted the magistrate judge's recommendation and dismissed the petition.

Upon consideration, the judgment of the district court will be affirmed for the reasons stated in the magistrate judge's recommendation filed May 27, 1992, and adopted by the district court's opinion and order filed June 17, 1992. The trial court's determination is entitled to deference under the circumstances of this case. See, e.g., Maggio v. Fulford, 462 U.S. 111, 118 (1983).

Accordingly, the motion for the appointment of counsel is denied and the judgment of the district court is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.