Leon Early, Petitioner-appellant, v. United States of America, Respondent-appellee, 38 F.3d 1215 (6th Cir. 1994)

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U.S. Court of Appeals for the Sixth Circuit - 38 F.3d 1215 (6th Cir. 1994)

Oct. 11, 1994


Before: MILBURN and DAUGHTREY, Circuit Judges, and CONTIE, Senior Circuit Judge.


ORDER

Leon Early, a pro se federal prisoner, appeals a district court judgment denying his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. The 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 hung jury at his first trial, Early was convicted by a jury in August 1989 of violating federal narcotics statutes and was sentenced to 110 months of imprisonment and four years of supervised release. This court affirmed Early's conviction, as well as the denial of a motion to suppress. United States v. Early, No. 90-5168 (6th Cir. Feb 27, 1991).

In his motion to vacate sentence, Early argued that his counsel rendered ineffective assistance when she did not impeach one of the government's principal witnesses with prior inconsistent statements made by the witness at a pre-trial suppression hearing. In addition, at a hearing on his motion to vacate sentence, he argued that counsel was ineffective when she did not object when the attorney for the government snatched a police report from her hand during a suppression hearing and when she was not permitted to attend a conference in the judge's chambers between a defense witness, the government's attorney, and the judge.

Upon review of Early's motion and the government's response, the magistrate judge filed a report recommending that the district court deny the motion to vacate as without merit. Over Early's objections, the district court adopted the magistrate judge's recommendation and dismissed the case. Early has filed a timely appeal, reasserting his same claims.

Upon review, we affirm the district court's judgment denying Early's motion to vacate because he has not shown any defect in the proceedings resulting in a complete miscarriage of justice or an error so egregious that it amounts to a violation of due process. See United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam). Counsel's cross-examination of officer Lewis was sufficient to put his credibility before the jury, and thus her failure to impeach him with his suppression hearing testimony did not render her performance ineffective. See Strickland v. Washington, 466 U.S. 668, 688 (1984); United States v. Aiello, 900 F.2d 528, 534 (2d Cir. 1990). The remaining grounds asserted by Early in support of his motion are likewise without merit.

Accordingly, we hereby affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.