Unpublished Dispositionhoward O'brien Tharpe, Petitioner-appellant, v. United States of America, Respondent-appellee, 932 F.2d 969 (6th Cir. 1991)

ORDER

This pro se federal prisoner appeals the district court's summary denial of his motion to vacate, set aside, or correct sentence filed under 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 examination pursuant to Fed. R. App. P. 34(a), this panel unanimously agrees that oral argument is not needed.

In his motion, Howard O'Brien Tharpe maintained that his sentence was improperly enhanced two points for obstruction of justice. He alleged that the enhancement was based on testimony given at a detention hearing for one of his codefendants. He asserted that he was denied due process because he was not present at this hearing.

Upon review, we conclude that summary denial was proper. See Rule 4(b), Rules Governing Section 2255 Proceedings in the United States District Courts. The claims presented in the motion to vacate have been previously addressed. See United States v. Tharpe, No. 90-5104 (6th Cir. Oct. 12, 1990) (unpublished), cert. denied, 111 S. Ct. 1016 (1991). Section 2255 may not be used to relitigate questions considered on direct appeal. United States v. Jones, 918 F.2d 9, 10 (2d Cir. 1990).

Accordingly, the district court's summary denial of the motion to vacate, set aside or correct sentence is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.