Donald Marbley, Petitioner-appellant, v. United States of America, Respondent-appellee, 948 F.2d 1289 (6th Cir. 1991)

Before BOYCE F. MARTIN, Jr. and SUHRHEINRICH, Circuit Judges, and HILLMAN, Senior District Judge.^* 

ORDER

Donald Marbley, a federal prisoner proceeding pro se, appeals from the judgment of the district court dismissing his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. The parties have waived oral argument. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Marbley pleaded guilty to distributing cocaine and was sentenced to ninety-six months imprisonment pursuant to his plea bargain. He did not directly appeal his sentence. Seeking a reduction of his sentence, however, Marbley challenged the sentence computation and argued that he should have been granted a two point downward adjustment for acceptance of responsibility, a two point downward adjustment for minor participation and other downward adjustments in accordance with the United States Sentencing Guidelines. The district court held that Marbley was barred from collaterally attacking his sentence because he did not directly appeal.

Upon review we find no error. Marbley made no contemporaneous objection regarding his sentence at the sentencing hearing nor did he appeal his sentence. A prisoner seeking vacation or correction of his sentence under 28 U.S.C. § 2255 on a ground not raised at trial must show reasonable cause for failure to raise the issue initially and must show that prejudice will result if the issue is not considered. See United States v. Frady, 456 U.S. 152, 167-68 (1982); Callanan v. United States, 881 F.2d 229, 231 (6th Cir. 1989), cert. denied, 110 S. Ct. 1816 (1990).

Marbley failed to show cause or prejudice for his failure to object or appeal. Accordingly, the judgment of the district court is hereby affirmed for the reasons set forth in the district court's order dated July 26, 1991. Rule 9(b) (3), Rules of the Sixth Circuit.