David E. Graham v. United States

848 F.2d 190, 1988 U.S. App. LEXIS 6563, 1988 WL 49081

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 19, 1988
• Docket: 87-6234
• Status: Unpublished

Opinion

848 F.2d 190

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
David E. GRAHAM, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 87-6234.

United States Court of Appeals, Sixth Circuit.

May 19, 1988.

Before WELLFORD, BOGGS and ALAN E. NORRIS, Circuit Judges.

ORDER

This 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).

Petitioner appeals the denial of his motion to vacate his sentence filed under 28 U.S.C. Sec. 2255. Upon review, we hereby affirm. First, we agree with the district court that petitioner did not establish that he was incompetent to stand trial under the standard enunciated in Dusky v. United States, 362 U.S. 402 (1960). See Lewis v. United States, 542 F.2d 50, 51 (8th Cir.) (per curiam), cert. denied, 429 U.S. 837 (1976); United States v. Smith, 521 F.2d 374, 377 (10th Cir.1975); White v. United States, 367 F.2d 788, 790 (8th Cir.1966). Next, we agree that petitioner did not establish that perjured testimony was knowingly used against him at trial. See United States v. Fiddler, 688 F.2d 45, 49 (8th Cir.1982) (per curiam); United States v. Gibbs, 662 F.2d 728, 730 (11th Cir.1981); United States v. Robinson, 585 F.2d 274, 279 (7th Cir.1978), cert. denied, 441 U.S. 947 (1979). Finally, petitioner presented no evidence demonstrating that deficient performance of counsel prejudiced his defense under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984).

Accordingly, the judgment of the district court is affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.