Unpublished Dispositionrichard Henry Morgan, Petitioner-appellant, v. United States of America, Respondent-appellee, 840 F.2d 17 (6th Cir. 1988)

Before BOYCE F. MARTIN, Jr., and ALAN E. NORRIS, Circuit Judges; and JOINER, Senior District Judge.^* 

ORDER

This pro se petitioner appeals the district court's denial of his motion to vacate his sentence filed under 28 U.S.C. § 2255. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Acting as his own counsel, the petitioner was convicted in 1977 by a jury of bank robbery in violation of 18 U.S.C. § 2113(a). He was sentenced to 18 years imprisonment. He is now serving that sentence after having been released on parole in December, 1985, and being returned as a parole violator in May, 1986.

Petitioner asserted that his sentence under 18 U.S.C. § 2113(a) should be vacated due to insufficiency of the evidence. Upon referral to a United States Magistrate, 28 U.S.C. § 636, it was recommended that the motion be denied for three reasons. First, the record established that sufficient evidence was presented to sustain the conviction. Second, Morgan did not request an instruction on lesser included offenses. Third, Morgan did not raise this issue in his direct appeal. The district court adopted the magistrate's report and recommendation and denied the motion to vacate.

Upon review, we conclude that the motion to vacate was properly denied for the reasons stated in the magistrate's report and recommendation dated May 6, 1987 and adopted in its entirety by the district court on May 27, 1987. Accordingly, we affirm the district court's judgment denying the motion to vacate. Rule 9(b) (5), Rules of the Sixth Circuit.