Peter Kelly, Petitioner-appellant, v. United States of America, Respondent-appellee, 12 F.3d 212 (6th Cir. 1993)

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US Court of Appeals for the Sixth Circuit - 12 F.3d 212 (6th Cir. 1993)

Nov. 18, 1993


S.D. Ohio, No. 91-00878, Rubin, J.

S.D. Ohio

AFFIRMED.

Before: NELSON and BATCHELDER, Circuit Judges, and CONTIE, Senior Circuit Judge.


ORDER

Peter Kelly appeals a district court order denying his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. The 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).

In 1990, Kelly pleaded guilty to distribution of crack cocaine. The district court sentenced Kelly to fifty-seven months of imprisonment and a three year term of supervised release. Kelly did not file a direct appeal. Kelly then filed a motion to vacate sentence, arguing that he received ineffective assistance of counsel because his counsel did not object to the version of the events relied upon by the district court in the pre-sentence report nor did counsel object to the district court's decision not to award Kelly a two-level reduction in his sentence guideline range for acceptance of responsibility. The district court determined that Kelly's arguments were without merit and denied the motion. Kelly has filed a timely appeal, and now moves for permission to proceed in forma pauperis on appeal.

Upon review, we conclude that the district court properly denied Kelly's Sec. 2255 motion. Kelly has failed to show a fundamental defect in the proceedings that inherently resulted in a complete miscarriage of justice or an error so egregious that it amounted to a violation of due process. United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam). Kelly received effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The district court properly complied with the requirements of Fed. R. Crim. P. 32(c) (3) (D) in sentencing Kelly. Further, Kelly has failed to meet his burden of demonstrating acceptance of responsibility. United States v. Christoph, 904 F.2d 1036, 1040 (6th Cir. 1990), cert. denied, 498 U.S. 1041 (1991). Lastly, we decline to address Kelly's argument that he should have received a reduction in his guideline range for being a minimal participant because Kelly did not raise this issue in the district court. See Taft Broadcasting Co. v. United States, 929 F.2d 240, 243-45 (6th Cir. 1991).

Accordingly, we grant Kelly in forma pauperis status for the limited purpose of review and affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.