Gene L. Cipriano, Petitioner-appellant, v. United States of America, Respondent-appellee, 46 F.3d 1131 (6th Cir. 1995)

Before: KEITH and NELSON, Circuit Judges, and BELL, District Judge.^* 

ORDER

Gene L. Cipriano appeals a district court order 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).

In 1991, Cipriano pleaded guilty to six counts of mail fraud in violation of 18 U.S.C. § 1341. The district court subsequently sentenced Cipriano to five years of imprisonment. Cipriano did not appeal his conviction or sentence.

In 1993, Cipriano filed a motion to vacate his sentence, alleging that: (1) his guilty plea was not made knowingly and intelligently because he was denied the effective assistance of counsel; (2) he was denied effective assistance of counsel at sentencing; and (3) the United States did not fulfill the provisions of the plea agreement. The district court determined that his claims were without merit and denied his motion. Cipriano has filed a timely appeal. On appeal, he requests the appointment of counsel and permission to proceed in forma pauperis.

Upon review, we conclude that the district court properly denied Cipriano's motion to vacate sentence. Cipriano has not shown a fundamental defect in his proceedings that inherently resulted in a complete miscarriage of justice or an error so egregious that it amounted to a violation of due process. United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir.) (per curiam), cert. denied, 113 S. Ct. 2424 (1993). Cipriano received effective assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 687 (1984), and the government did not breach its plea agreement with Cipriano.

Accordingly, we grant Cipriano's request to proceed in forma pauperis, deny his request for counsel, and affirm the judgment for the reasons set forth in the district court's opinion and order filed on March 21, 1994. Rule 9(b) (3), Rules of the Sixth Circuit.