Unpublished Dispositioneric C. Martin, Petitioner-appellant, v. United States of America, Respondent-appellee, 787 F.2d 591 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 787 F.2d 591 (6th Cir. 1986)

3/5/86


AFFIRMED

ORDER

BEFORE: JONES and WELLFORD, Circuit Judges, and GILMORE, District Judge.* 

This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the record and informal brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure. Petitioner has filed a motion for appointment of counsel.

Petitioner was sentenced to life on a kidnapping charge, 10 years on a weapons charge, and 5 years on a charge of interstate transportation of a stolen motor vehicle. On direct appeal, this Court affirmed the district court's decision. United States v. Martin, 704 F.2d 267 (6th Cir. 1983). Petitioner's motion to vacate sentence pursuant to 28 U.S.C. § 2255 was dismissed by the district court and petitioner appealed.

Petitioner's claim of insufficient evidence, ineffective assistance of counsel and failure to be confronted by his accusers were rejected by this Court on direct criminal appeal and are precluded from being reviewed again in collateral proceedings under 28 U.S.C. § 2255. United States v. Shabazz, 657 F.2d 189 (8th Cir. 1981); United States v. Orejuela, 639 F.2d 1055 (3rd Cir. 1981); Chin v. United States, 622 F.2d 1090 (2nd Cir. 1980), cert. denied, 450 U.S. 923 (1981); Stephan v. United States, 496 F.2d 527 (6th Cir. 1974), cert. denied, 423 U.S. 861 (1975).

The remaining issue presented in the Sec. 2255 proceeding is the alleged false testimony of his co-defendants and the disparity of sentences received. Petitioner has not met the burden of sustaining his contentions by a preponderance of the evidence. United States v. Kastenbaum, 613 F.2d 86 (5th Cir. 1980). The issue of the alleged false testimony should have been raised on direct appeal and petitioner is precluded from raising it at this time. Chin v. United States, 622 F.2d 1090 (2nd Cir. 1980). The fact that the appellant's sentence is greater than that of a co-defendant does not warrant relief under Sec. 2255. Shepard v. United States, 257 F.2d 293 (1958); see Reynolds v. United States, 528 F.2d 461 (6th Cir. 1976). Cf. United States v. Fields, 730 F.2d 460 (6th Cir. 1984).

It is ORDERED that the motion for counsel be and hereby is denied.

It is further ORDERED that the judgment of the district court be and hereby is affirmed. Rule 9(d) (3), Rules of the Sixth Circuit.

 *

The Honorable Horace W. Gilmore, U.S. District Judge for the Eastern District of Michigan, sitting by designation