German Hernandez, Petitioner-appellant, v. United States of America, Respondent-appellee, 977 F.2d 581 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 977 F.2d 581 (6th Cir. 1992) Sept. 29, 1992

Before NATHANIEL R. JONES and SILER, Circuit Judges, and BAILEY BROWN, 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 requests the 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, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

On July 19, 1990, German Hernandez pleaded guilty to conspiracy to distribute cocaine. Prior to sentencing, Hernandez requested leave to withdraw his guilty plea on grounds that he was improperly advised by counsel concerning the consequences of his plea. The motion to withdraw the guilty plea was denied; a subsequent motion to reconsider the district court's order denying the motion to withdraw the plea was also denied.

Hernandez was sentenced to serve two hundred forty (240) months imprisonment and five years supervised release. His conviction and sentence were affirmed on appeal. United States v. Hernandez, No. 90-4127 (6th Cir. Sept. 13, 1991) (unpublished).

In his motion to vacate sentence, Hernandez maintained that the guilty plea was invalid because he received ineffective assistance of counsel. After determining that the claims of ineffective assistance of counsel had been considered on direct appeal, the district court denied the motion to vacate.

Upon review, we conclude that the motion to vacate sentence was properly denied. A federal prisoner may not renew in a § 2255 motion to vacate the same claims decided against him in a direct appeal of his criminal conviction. See Stephan v. United States, 496 F.2d 527, 528-29 (6th Cir. 1974), cert. denied, 423 U.S. 861 (1975). Review of the record shows that Hernandez's claims were previously addressed. Moreover, the district court did not err by failing to conduct an evidentiary hearing because it is clear from the record that Hernandez is not entitled to relief. See Baker v. United States, 781 F.2d 85, 92 (6th Cir.), cert. denied, 479 U.S. 1017 (1986).

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