Unpublished Dispositionwilford Larry Brooks, Petitioner-appellant, v. United States of America, Respondent-appellee, 940 F.2d 658 (6th Cir. 1991)

ORDER

Wilford Larry Brooks moves for the appointment of counsel on appeal from the dismissal of his motion to vacate sentence filed under 28 U.S.C. § 2255. 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, Brooks was convicted of five counts of unlawful distribution of a controlled substance in violation of 21 U.S.C. § 841(a) (1), and was sentenced to five concurrent 3-year terms of imprisonment with 3-year special parole terms. The convictions were affirmed by this court on direct appeal. United States v. Brooks, 875 F.2d 868 (6th Cir.) (table), cert. denied, 490 U.S. 1094 (1989). Thereafter, Brooks filed his motion to vacate his sentence in the district court alleging: (1) evidence obtained by an illegal search and seizure was introduced at trial; (2) a statement illegally obtained from petitioner was introduced at trial; (3) petitioner was incompetent to stand trial; (4) petitioner was improperly denied a continuance before trial; and (5) petitioner received ineffective assistance of counsel. The government responded in opposition to petitioner's motion to vacate, and the magistrate recommended that the motion be denied. The district court adopted the magistrate's recommendation and denied the motion over petitioner's objections.

Upon consideration, we affirm the judgment of the district court for the reasons stated in the magistrate's report and recommendation filed August 22, 1990, and adopted by the district court in its order filed November 14, 1990. Petitioner's claims that a statement illegally obtained from him was introduced at trial and that he was improperly denied a continuance were adjudicated on petitioner's direct appeal and may not be relitigated under Sec. 2255. See Stephan v. United States, 496 F.2d 527, 528-29 (6th Cir. 1974) (per curiam), cert. denied, 423 U.S. 861 (1975). Petitioner's remaining claims are without merit.

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