Unpublished Dispositionjames Ronald O'leary, Also Known As Pete and Rabbit O'leary,petitioner- Appellant, v. United States of America, Respondent-appellee, 863 F.2d 49 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 863 F.2d 49 (6th Cir. 1988) Nov. 21, 1988

Before ENGEL, Chief Judge, WELLFORD, Circuit Judge, and WILLIAM K. THOMAS, Senior District Judge.* 

ORDER

The petitioner moves for an original transcript on appeal from the district court's order denying the motion to vacate sentence. 28 U.S.C. § 2255. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

A federal jury in Chattanooga, Tennessee, convicted the petitioner of conspiracy to distribute cocaine and of using a communications facility to facilitate the commission of a felony. The petitioner received a twelve year sentence. This court affirmed the convictions on appeal.

In his motion to vacate, the petitioner argues that a statement cited by this court in its prior order affirming the convictions cannot be found in the trial transcript or on the original wiretap audio tapes. According to the petitioner, this statement was the only evidence showing his intent to distribute cocaine to third parties.

The petitioner's argument fails because this court's prior decision cited numerous sources of evidence showing an intent to distribute. Moreover, we have listened to the tapes, and they do contain the disputed statement. Therefore, the petitioner's argument on this issue is without merit. The petitioner's ineffective assistance of counsel claim based on the same issue is also without merit.

The motion for an original transcript is denied. The order of the district court is affirmed under Rule 9(b) (5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.

 *

The Honorable William K. Thomas, Senior U.S. District Judge for the Northern District of Ohio, sitting by designation