Eric Waldon, 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. 6, 1992

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


This pro se federal prisoner appeals the district court's order denying his motion to vacate, set aside or correct sentence filed under 28 U.S.C. § 2255. He has filed a motion for 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).

Eric Waldon was convicted by a jury of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a) and (b) (1) (B). He was sentenced to serve sixty months imprisonment, followed by four years supervised release, and to pay a fifty dollar special assessment. His conviction was affirmed on appeal. United States v. Waldon, No. 89-3935 (6th Cir. May 7, 1990) (per curiam).

In his motion to vacate sentence, Waldon alleged numerous improprieties by counsel, the prosecutor and the trial court. He claimed counsel's assistance was ineffective and that the prosecutor solicited and used perjured testimony and did not disclose favorable evidence. He also alleged that the prosecutor improperly commented on post-arrest silence and that counsel failed to object to the comment. He claimed that the trial court judge was biased and admitted tampered evidence. Finally, he claimed that appellate counsel was ineffective.

Upon consideration of the record, the district court determined that Waldon's claims were meritless and dismissed the motion. On appeal, Waldon asserts that the district court erred by failing to conduct an evidentiary hearing and by failing to give detailed findings of fact and conclusions of law in its memorandum opinion and order dismissing the motion.

Upon review, we conclude that the motion to vacate sentence was properly dismissed. Waldon failed to show that he was entitled to relief under 28 U.S.C. § 2255. See United States v. Timmreck, 441 U.S. 780, 784 (1979). No evidentiary hearing was required because the record conclusively showed that he was not entitled to relief. See Baker v. United States, 781 F.2d 85, 92 (6th Cir.), cert. denied, 479 U.S. 1017 (1986). Moreover, contrary to Waldon's argument, it is not necessary to remand the matter for further findings of fact and conclusions of law. The district court's order was not so brief that appellate review is impossible. Cf. Hart v. United States, 565 F.2d 360, 362 (5th Cir. 1978) (per curiam).

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