Unpublished Dispositionleslie Malone, Petitioner-appellant, v. United States of America, Respondent-appellee, 940 F.2d 661 (6th Cir. 1991)

ORDER

This pro se federal prisoner appeals the district court's order denying his motion to vacate, set aside or correct sentence filed under 28 U.S.C. § 2255. He also moves for the appointment of counsel and for preparation of a transcript at the government's expense. 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).

Leslie Malone pleaded guilty to charges of conspiracy to distribute and possession with intent to distribute cocaine. He was sentenced to serve two concurrent five year terms of imprisonment.

In his motion to vacate, set aside or correct sentence, Malone contended that his sentence was erroneously based on the amount of cocaine involved in the case as charged in the indictment. He asserted that the sentence should have been computed based on a lesser amount identified in the presentence investigation report. He further claimed that information in the presentence report was inaccurate and that the district court erred by failing to make specific findings of fact as to the accuracy of the report.

Upon review, we conclude that the motion to vacate sentence was properly denied because it is a second and successive motion that does not allege grounds different from those previously alleged and decided on the merits by the district court. See Rule 9, Rules Governing Section 2255 Proceedings in the District Courts.

In his brief, Malone contends for the first time that his attorney's performance fell below standards in that counsel did not raise on direct appeal the issue of the propriety of the district court's ruling on Malone's motion to suppress evidence. This question was not raised below by Malone in his motion under 28 U.S.C. § 2255, and we therefore do not consider it on appeal. Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir.), cert. denied, 488 U.S. 880 (1988).

Accordingly, the motions for appointment of counsel and for a transcript at government expense are denied. The district court's order is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.