Unpublished Dispositiondavid E. Graham, Petitioner-appellant, v. United States of America, Respondent-appellee, 848 F.2d 190 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 848 F.2d 190 (6th Cir. 1988) May 19, 1988

Before WELLFORD, BOGGS and ALAN E. NORRIS, Circuit Judges.


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).

Petitioner appeals the denial of his motion to vacate his sentence filed under 28 U.S.C. § 2255. Upon review, we hereby affirm. First, we agree with the district court that petitioner did not establish that he was incompetent to stand trial under the standard enunciated in Dusky v. United States, 362 U.S. 402 (1960). See Lewis v. United States, 542 F.2d 50, 51 (8th Cir.) (per curiam), cert. denied, 429 U.S. 837 (1976); United States v. Smith, 521 F.2d 374, 377 (10th Cir. 1975); White v. United States, 367 F.2d 788, 790 (8th Cir. 1966). Next, we agree that petitioner did not establish that perjured testimony was knowingly used against him at trial. See United States v. Fiddler, 688 F.2d 45, 49 (8th Cir. 1982) (per curiam); United States v. Gibbs, 662 F.2d 728, 730 (11th Cir. 1981); United States v. Robinson, 585 F.2d 274, 279 (7th Cir. 1978), cert. denied, 441 U.S. 947 (1979). Finally, petitioner presented no evidence demonstrating that deficient performance of counsel prejudiced his defense under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984).

Accordingly, the judgment of the district court is affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.