Roosevelt Lee Howard, Petitioner-appellant, v. United States of America, Respondent-appellee, 9 F.3d 107 (6th Cir. 1993)

Before: NORRIS and SILER, Circuit Judges, and HEYBURN, District Judge.^* 

ORDER

Roosevelt Lee Howard, a pro se federal prisoner, appeals a district court judgment denying his motion to vacate his 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 1990, Howard pleaded guilty to possessing cocaine with the intent to distribute. He was sentenced to 97 months' imprisonment and four years' supervised release. Howard filed an untimely notice of appeal. This court dismissed the appeal for lack of jurisdiction.

Howard filed his motion to vacate his sentence raising twelve grounds for relief which the district court denied. Howard then filed a timely appeal raising the same issues that he presented to the district court. He requests free transcripts of various court proceedings and the appointment of counsel.

Upon review, we conclude that Howard has failed to establish cause and prejudice to excuse his failure to assert most of his issues in his direct criminal appeal, see United States v. Frady, 456 U.S. 152, 167-69 (1982); and, as for his ineffective assistance of counsel claim which is appropriately raised in a Sec. 2255 motion, we conclude that Howard has likewise failed to establish the denial of a substantive right or defect in the proceedings that is inconsistent with the rudimentary demands of fair procedure. See United States v. Timmreck, 441 U.S. 780, 783-84 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam).

No prejudice or defect is shown because it is apparent that Howard's guilty plea was voluntarily, knowingly, and intelligently entered. Brady v. United States, 397 U.S. 742, 749 (1970); Riggins v. McMackin, 935 F.2d 790, 795 (6th Cir. 1991). His sentence was properly calculated. United States v. Latimer, 991 F.2d 1509, 1510-11 (9th Cir. 1993); United States v. Lewis, 991 F.2d 322, 324 (6th Cir. 1993). Counsel rendered effective assistance. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Thomas v. Foltz, 818 F.2d 476, 480 (6th Cir.), cert. denied, 484 U.S. 870 (1987). Finally, by entering a valid guilty plea, Howard waived his remaining arguments. Tollett v. Henderson, 411 U.S. 258, 267 (1973).

Accordingly, we deny the requests for relief and affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.