Benjamin Franklin Christian, Petitioner-appellant, v. United States of America, Respondent-appellee, 945 F.2d 404 (6th Cir. 1991)

Before RALPH B. GUY, Jr. and BOGGS, Circuit Judges, and McRAE, Senior District Judge.^* 

ORDER

Benjamin Christian, a federal prisoner, appeals the district court's judgment denying his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. On appeal, he requests leave to proceed in forma pauperis. 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).

In 1985, Christian pled guilty to conspiracy to commit arson, making false statements, illegal transportation of explosives, and interstate transportation of stolen goods. Christian was sentenced to fifteen years imprisonment at a sentencing hearing held January 3, 1986. At that hearing, Christian agreed that he had read the pre-sentence investigation report and did not complain of any factual inaccuracies in the report.

In 1988, Christian filed his first motion to vacate his sentence. He challenged the factual accuracy of the report and the effectiveness of his trial counsel's performance. The district court denied the motion on its merits. This court affirmed that decision in an order entered on September 29, 1989.

Christian filed his second motion to vacate sentence on July 5, 1990. In this motion, he again argued that the report contains certain factual inaccuracies and that he was not afforded the opportunity to read the report prior to his sentencing. The district court referred the matter to the magistrate who recommended denying the first argument on grounds of successiveness and denying the second on its merits. The district court adopted the report of the magistrate over Christian's timely objections.

On review, we affirm the judgment of the district court. Christian's argument that his presentence investigation report contains certain undescribed factual inaccuracies is successive under Rule 9(b) of the Rules Governing 28 U.S.C. § 2255 proceedings. The district court and this court rejected this exact argument on its merits two years ago. Christian cannot relitigate the same issue by a second motion to vacate. Moody v. United States, 580 F.2d 238, 239 (6th Cir. 1978); United States v. Zavada, 291 F.2d 189, 191 (6th Cir. 1961).

Christian's accompanying argument that he did not have the opportunity to examine the report prior to his sentencing is refuted by his own recorded statements at the sentencing hearing. The affidavit of his trial counsel does not contradict Christian's affirmative response at sentencing that he had read and reviewed the report. The transcript of the sentencing hearing supports the finding of the district court and requires rejection of Christian's second argument. Richardson v. United States, 577 F.2d 447, 450 (8th Cir. 1978).

Accordingly, we hereby grant Christian permission to proceed in forma pauperis on appeal, and affirm the judgment of the district court entered on March 6, 1991. Rule 9(b) (3), Rules of the Sixth Circuit.