Robert Earthman, Petitioner-appellant, v. United States of America, Respondent-appellee, 14 F.3d 600 (6th Cir. 1993)

ORDER

Robert Earthman, a pro se federal prisoner, appeals from a district court order dismissing 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).

Earthman was convicted by a jury of conspiracy to distribute cocaine, possession with intent to distribute cocaine, carrying a firearm during a drug trafficking crime, possession with intent to distribute cocaine within 1000 feet of a public elementary school, and making property available for storing and distributing controlled substances. He was sentenced to a total of 300 months of imprisonment. On direct appeal, he argued that the evidence was not sufficient to support his conviction and that his counsel was ineffective for conceding some of the conduct charged. This court rejected these arguments and affirmed the conviction.

In this motion to vacate, Earthman argued ineffective assistance of counsel again, both for the reason raised on direct appeal and on other new grounds. He also argued that his appellate counsel had been ineffective for failing to raise all of these issues. The district court found no reason to reconsider the claim that had been raised on direct appeal and found no merit to the new claims. The motion was accordingly denied. The same issues are raised on appeal. Earthman seeks a remand for an evidentiary hearing.

Upon review, we conclude that this motion was properly denied for the reasons stated by the district court. No evidentiary hearing was required, as the record conclusively shows that Earthman is not entitled to relief. See Baker v. United States, 781 F.2d 85, 92 (6th Cir.), cert. denied, 479 U.S. 1017 (1986).

The district court properly found that there has been no change in the law requiring the reconsideration of the issue raised and decided on direct appeal. See Johnston v. United States, 832 F.2d 1, 1 n. 1 (1st Cir. 1987) (per curiam); see also Stephan v. United States, 496 F.2d 527, 528 (6th Cir. 1974) (per curiam), cert. denied, 423 U.S. 861 (1975). Furthermore, the new issues raised by Earthman in support of his ineffective assistance claim lack merit. He has failed to demonstrate that his counsel's performance was deficient or that any alleged deficiency prejudiced the outcome of the trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

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