826 F. 2d 1062 - Costanzo v. United States

This matter has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the motion to proceed in forma pauperis, the record and the brief of the appellant, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Appellant was named in a six-count indictment in 1984. Pursuant to a plea agreement, he pled guilty to one count of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and was sentenced to ten years imprisonment. In 1986, he filed a 28 U.S.C. Sec. 2255 motion to vacate, set aside or correct sentence in which he alleged: 1) the government presented to the court, for purposes of sentencing, certain information which was false, misleading and inaccurate, and in violation of the plea agreement; 2) the court failed to adhere to Rule 32, Federal Rules of Criminal Procedure, by failing to provide defendant an opportunity to review and comment on the presentence report; and 3) that he was denied effective assistance of counsel because counsel persuaded him to file an inaccurate presentence report alleging that such report would be corrected, that counsel failed to mention the inaccuracies at sentencing, and that counsel failed to advise him that the presentence report would be used by the Parole Board and the Bureau of Prisons. The district court found the issues raised were without merit and dismissed the case. Subsequently, the court also denied appellant leave to proceed on appeal in forma pauperis.

Upon review, it is ORDERED that the motion for leave to proceed on appeal in forma pauperis be denied. Furthermore, we conclude that the district court did not err in dismissing the case. The judgment of the district court is affirmed for the reasons stated in the January 13, 1987, memorandum opinion of the district court. Rule 9(b)(5), Rules of the Sixth Circuit.