Unpublished Dispositionfred Rhodes, Petitioner-appellant, v. United States of America, Respondent-appellee, 881 F.2d 1077 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 881 F.2d 1077 (6th Cir. 1989)

Aug. 10, 1989

Before KRUPANSKY and RYAN, Circuit Judges, and LIVELY, Senior Circuit Judge.


Fred Rhodes appeals a judgment of the district court which dismissed his motion to vacate sentence pursuant to 28 U.S.C. § 2255. He now moves for leave to proceed in forma pauperis and for the appointment of counsel. Upon review of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In April 1987, Rhodes pleaded guilty to violations of 18 U.S.C. §§ 841, 843, and 846, and was sentenced to a total of 15 years' imprisonment. In imposing that sentence, the district court stipulated that Rhodes would be ineligible for parole and required that he serve concurrent four year terms of special parole and mandatory supervised release upon the termination of his incarceration. Rhodes subsequently challenged the validity of that punishment by filing a motion to vacate sentence pursuant to 28 U.S.C. § 2255 in the District Court for the Western District of Kentucky. In support of his request for that relief, Rhodes alleged that: 1) the district court had failed to comply with Fed. R. Crim. P. 11 in accepting his guilty plea; 2) the district court had incorrectly applied the Sentencing Reform Act of 1986 to render him ineligible for parole; 3) neither special parole nor mandatory supervised release were included within the range of the penalties which could be imposed as punishment for the offenses he had committed; 4) he had not been given an adequate opportunity to review his presentence investigative report; and 5) he had not received the effective assistance of counsel. Acting upon its magistrate's report and recommendation, however, the district court determined that Rhodes' claims were without merit and denied the motion to vacate sentence. Rhodes then filed this appeal.

Upon review of the record, the court concludes that the district court did not err in denying the motion to vacate sentence. Accordingly, the motion for leave to proceed in forma pauperis is granted, the motion for appointment of counsel is denied, and the district court's judgment is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.