Jorge Clavijo-sanchez, Petitioner-appellant, v. United States of America, Respondent-appellee.luis Humberto Angarita-garzon, Petitioner-appellant, v. United States of America, Respondent-appellee,hector Rios, Also Known As Erick Rivas, Petitioner-appellant, v. United States of America, Respondent-appellee, 959 F.2d 233 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 959 F.2d 233 (6th Cir. 1992) April 1, 1992

Before KENNEDY and SILER, Circuit Judges, and KRUPANSKY, Senior Circuit Judge.


Jorge Clavijo-Sanchez, Luis Humberto Angarita-Garzon, and Hector Rios, appeal district court orders denying their motions to vacate their sentences filed under 28 U.S.C. § 2255. The cases have 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).

A federal jury in Michigan convicted Clavijo-Sanchez, Angarita-Garzon, and Rios of multiple drug charges in February 1987. Clavijo-Sanchez and Rios received fifteen year sentences. Angarita-Garzon received a forty year sentence. Angarita-Garzon moved for a reduction of sentence under Fed. R. Crim. P. 35(a) in August 1987. The motion was denied by the district court and subsequently affirmed by this court. United States v. Angarita-Garzon, 891 F.2d 292 (6th Cir. 1989) (unpublished).

In June 1990 each appellant filed a motion to vacate their convictions under 28 U.S.C. § 2255 alleging they were denied effective assistance of counsel because their attorney did not: (1) challenge the indictments, (2) tender a supplemental unanimity instruction, and (3) appeal ethnic comments made by two government witnesses. The motions were denied. All appellants have filed timely appeals raising the same issues they presented to the district court, contending the district court erred by not having a hearing on their motions. They request leave to proceed in forma pauperis and oral argument.

Appellants have failed to establish the denial of a substantive right or defects in the trial which are inconsistent with the rudimentary demands of fair procedure. See United States v. Timmreck, 441 U.S. 780, 783-84 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam). Counsel rendered effective assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Furthermore, the district court properly denied appellants' motions without a hearing. See Baker v. United States, 781 F.2d 85, 92 (6th Cir.), cert. denied, 479 U.S. 1017 (1986); Bryan v. United States, 721 F.2d 572, 577 (6th Cir. 1983), cert. denied, 465 U.S. 1038 (1984).

Accordingly, we grant appellants' motions to proceed in forma pauperis, deny their requests for oral argument, and affirm the district court's orders. Rule 9(b) (3), Rules of the Sixth Circuit.