Antwon Dwayne Smith, Petitioner-appellant, v. United States of America, Respondent-appellee, 956 F.2d 270 (6th Cir. 1992)

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U.S. Court of Appeals for the Sixth Circuit - 956 F.2d 270 (6th Cir. 1992) Feb. 26, 1992

Before BOYCE F. MARTIN, Jr., MILBURN and DAVID A. NELSON, Circuit Judges.


This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Antwon Smith pleaded guilty to possession of cocaine with intent to distribute it in violation of 21 U.S.C. § 841(a) (1). He received a ten year sentence, and thereafter moved unsuccessfully to vacate the sentence under 28 U.S.C. § 2255. He now appeals the denial of his § 2255 motion and moves for in forma pauperis status, appointment of counsel, and a government-furnished transcript.

The defendant argued in the district court, as he argues here, that the decision to prosecute him in a federal court as opposed to a state court was improper. The district court, accepting a magistrate's recommendation, concluded that the decision to prosecute Smith in federal court was within the prosecutor's discretion and nothing in the record suggested that the prosecutor had an improper motive. See Wayte v. United States, 470 U.S. 598, 607-08 (1985); United States v. Allen, Nos. 91-5205/5206, --- F.2d ---- (6th Cir. 1992).

Upon consideration, we conclude that the district court correctly denied the motion to vacate sentence. For the reasons stated in the magistrate judge's July 31, 1991, report and recommendation, as adopted by the district court in its August 20, 1991, order, the district court's order is hereby affirmed pursuant to Rule 9(b) (3), Rules of the Sixth Circuit. The motions for in forma pauperis status, counsel, and transcript are denied.