James Daugherty, Petitioner-appellant, v. United States of America, Respondent-appellee, 977 F.2d 580 (6th Cir. 1992)

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U.S. Court of Appeals for the Sixth Circuit - 977 F.2d 580 (6th Cir. 1992) Oct. 14, 1992

Before KENNEDY and BOYCE F. MARTIN, Jr., Circuit Judges, and GRAHAM, District Judge.* 

ORDER

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).

James Daugherty filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 in which he challenged the constitutionality of 1990 sentences for possession of marijuana in violation of 21 U.S.C. § 841(a) (1) and possession of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c). The matter was referred to a magistrate who recommended that the motion be denied. The district court adopted the recommendation then reaffirmed this decision after considering Daugherty's objections. This appeal followed.

Upon consideration, we find no reversible error in the proceedings on review. Daugherty complains that the district court did not consider all the evidence and improperly denied him an evidentiary hearing. We have carefully examined the record and find that Daugherty was not entitled to an evidentiary hearing as it plainly appears that he is not entitled to relief under any of the claims raised. See Baker v. United States, 781 F.2d 85, 92 (6th Cir.), cert. denied, 479 U.S. 1017 (1986).

Accordingly, the district court's judgment is affirmed for the reasons set forth extensively in the report and recommendation of the magistrate judge filed March 9, 1992, and adopted by the district court in its orders of March 23, 1992, and April 14, 1992. Rule 9(b) (3), Rules of the Sixth Circuit.

 *

The Honorable James L. Graham, U.S. District Judge for the Southern District of Ohio, sitting by designation