Lonnie Walker, Petitioner-appellant, v. United States of America, Respondent-appellee, 989 F.2d 501 (6th Cir. 1993)

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U.S. Court of Appeals for the Sixth Circuit - 989 F.2d 501 (6th Cir. 1993) March 15, 1993

Before KEITH and DAVID A. NELSON, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.


ORDER

Lonnie Walker, a pro se federal prisoner, appeals the denial of his motion to vacate sentence filed under 28 U.S.C. § 2255. 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).

Walker was convicted following a jury trial of possession with intent to distribute cocaine base and using a firearm during the commission of a drug trafficking offense. He was sentenced to ninety-three months imprisonment. His conviction was affirmed on direct appeal to this court. In this motion to vacate sentence, Walker argued that his trial counsel was ineffective for failing to secure the testimony of witnesses and failing to insist on the introduction of fingerprint evidence and the money used in the drug transaction. The district court concluded that Walker's arguments were frivolous and sua sponte denied the motion. The same arguments are raised on appeal.

Upon review, it is concluded that this motion was properly denied without an evidentiary hearing, as the record shows conclusively that Walker is not entitled to relief. See Rule 4(b), Rules Governing Section 2255 Proceedings; Baker v. United States, 781 F.2d 85, 92 (6th Cir.), cert. denied, 479 U.S. 1017 (1986). The record shows that counsel was unable to locate the witnesses in question and that the possible content of their testimony was unknown. Counsel is entitled to a presumption that he was pursuing sound trial strategy in not insisting on the production of the money or fingerprint evidence. See Strickland v. Washington, 466 U.S. 668, 689 (1984). Walker has not overcome this presumption by his farfetched arguments that the evidence would have been exculpatory.

Accordingly, the district court's judgment is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.