Alfredo Rios, Petitioner-appellant, v. United States of America, Respondent-appellee, 954 F.2d 725 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 954 F.2d 725 (6th Cir. 1992) Feb. 12, 1992

Before KENNEDY and RALPH B. GUY, Jr., Circuit Judges, and LIVELY, Senior Circuit Judge.


ORDER

Alfredo Rios, a federal prisoner represented by counsel, appeals the district court's order denying his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. 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).

In January 1987, a jury convicted Rios of conspiracy to import cocaine. He was sentenced to fifteen years imprisonment and fined $20,000. His conviction was affirmed on direct appeal. See United States v. Rios, 842 F.2d 868 (6th Cir. 1988), cert. denied, 488 U.S. 1031 (1989).

In this motion to vacate sentence, Rios argued: (1) that the indictment was not properly executed; and (2) that he was denied his right to due process when the government's principal witness, John McCann, committed perjury and when the government failed to disclose impeaching evidence of this witness in violation of Brady v. Maryland, 373 U.S. 83 (1963). Respondent filed an answer to the motion. The district court then denied the motion to vacate, finding it without merit.

On appeal, Rios reasserts issue two and further argues that the district court erred in not treating the § 2255 motion as an application for coram nobis relief pursuant to 28 U.S.C. § 1561(a).

Initially, we note that because Rios does not raise issue one on appeal, it is considered abandoned and will not be reviewed. See McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir. 1986).

Upon review, we affirm the district court's order. Rios has failed to establish the denial of a substantive right or the existence of defects in the proceedings which are inconsistent with the rudimentary demands of fair procedure. See United States v. Timmreck, 441 U.S. 780, 783-84 (1979). Moreover, Rios has not established his entitlement to the extraordinary remedy of the writ of coram nobis, because he has not demonstrated an error of a fundamentally unjust character which would have altered the outcome of the challenged proceeding. See Flippins v. United States, 747 F.2d 1089, 1091 (6th Cir. 1984) (per curiam). There was no evidence that McCann committed perjury in the course of Rios's trial.

Accordingly, the district court's order is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.