United States v. Roberts

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 24, 1998
• Docket: 96-50676
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-50676 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus TIMOTHY ROBERTS,

Defendant-Appellant. ________________________________________________________________

Appeals from the United States District Court for the Western District of Texas USDC No. A-95-CA-29-4 _________________________________________________________________

April 20, 1998

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Timothy Roberts, federal prisoner # 60934-080, has appealed

the district court’s denial of his 28 U.S.C. § 2255 motion to

vacate his sentence for a drug-trafficking offense.

The district court agreed with the magistrate judge’s findings

that Roberts’s plea agreement waived his right (1) to contest the

type of methamphetamine involved, and (2) to assert that he was

entitled to additional sentence credit for acceptance of

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. responsibility on authority of U.S.S.G. § 3E1.1(b)(2). We find no

error in these rulings.

The district court held an evidentiary hearing on Roberts’s

claims that his counsel was ineffective (1) for not asserting that

L-methamphetamine rather than D-methamphetamine was involved, and

(2) for not preserving Roberts’s right to take a direct appeal.

However, the court denied Roberts’s application for the appointment

of counsel to represent him at the hearing. This ruling requires

the reversal of the district court’s denial of relief on these counsel-ineffectiveness claims. See United States v. Vasquez, 7

F.3d 81, 83-86 (5th Cir. 1993) (a harmless error analysis is

inappropriate).

Roberts is not entitled to relief on his claims (1) that the

district court should not have denied his request for discovery;

(2) that the court failed to address some of his objections to the

magistrate judge’s report; and (3) that the district court should

have considered new claims alleged in his objections to the report

as amendments to his § 2255 motion.

The new claims are (1) denial of due process and (2)

ineffective assistance of counsel, based on Roberts’s assumption

that the probation officer did not receive his objections to the

presentence report until the day he was sentenced. These claims

lack merit because the record shows that the probation officer

received the objections nine days before Roberts was sentenced.

AFFIRMED in part; VACATED and REMANDED in part.

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