George W. Brady, Petitioner-appellant, v. United States of America, Respondent-appellee, 943 F.2d 51 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 943 F.2d 51 (6th Cir. 1991) Sept. 16, 1991

Before MERRITT, Chief Judge, RALPH B. GUY, Jr., Circuit Judge, and SILER, Chief District Judge.* 

ORDER

This pro se federal prisoner appeals the district court's summary dismissal of his request for relief pursuant to 28 U.S.C. § 2255. He requests the appointment of counsel. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

George W. Brady filed a motion in which he sought to challenge his 1977 conviction and sentence. He alleged that he was illiterate and forced to rely on inmate assistance, that "it was possible" he would need a transcript of sentencing to prove his claims, and that respondent was not prejudiced by a delay of fourteen years between sentencing and the present challenge. Brady specified no other grounds for relief.

Although Brady purportedly sought reconsideration of an earlier district court order denying a prior motion for relief, the district court considered the present motion as a separate motion for relief under 28 U.S.C. § 2255.

Upon review, we conclude that insofar as Brady conceded that the prior motion was defective, the district court did not abuse its discretion by considering the motion as a separate application filed under 28 U.S.C. § 2255. To the extent Brady sought to attack his conviction and sentence, summary dismissal was proper. As Brady asserted no grounds for relief, it plainly appeared from the face of the motion and annexed exhibits that he was not entitled to relief under § 2255. See United States v. Sanders, 723 F.2d 34, 35 (8th Cir. 1983).

Accordingly, the request for the appointment of counsel is denied and the district court's order is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.

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The Honorable Eugene E. Siler, Jr., Chief U.S. District Judge for the Eastern District of Kentucky, sitting by designation