925 F. 2d 1466 - United States v. Graewe

Before KENNEDY and NATHANIEL R. JONES, Circuit Judges, and CHURCHILL, Senior District Judge.*

Frederick Graewe, a pro se federal prisoner, moves for the production of documents and a transcript on appeal from the district court's order denying his motion to correct sentence, construed as having been filed under 28 U.S.C. Sec. 2255. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Graewe is serving a seventeen year sentence on convictions of interstate travel in aid of racketeering and using a telephone to distribute marijuana. He filed this motion arguing that his sentence should be corrected because the district court relied on allegedly false testimony from a pre-trial bond hearing, that Graewe had threatened two F.B.I. agents, in setting the sentence. He also claimed that his pre-sentence information report should be corrected to remove information contrary to that adduced at his trial.

The district court denied the motion, stating that it had not relied on the contested information in sentencing. As to Graewe's second claim, the district court concluded that it was in essence an attack on Graewe's parole determination, and therefore must be brought under 28 U.S.C. Sec. 2241 in the district court having jurisdiction over his custodian. See Cohen v. United States, 593 F.2d 766, 770-71 (6th Cir.1979). Moreover, the district court had already addressed this argument at sentencing pursuant to Fed.R.Crim.P. 32(c)(3)(D).

Upon consideration, this court concludes that the motion for production of documents and a transcript should be denied, as the material requested is unnecessary to this appeal. The motion is denied, and the district court's order is affirmed for the reasons stated in its opinion filed July 18, 1990. Rule 9(b)(5), Rules of the Sixth Circuit.