John A. Fisher v. United States

802 F.2d 457 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. JOHN A. FISHER, Plaintiff-Appellant v. UNITED STATES OF AMERICA, Defendant-Appellee. No. 86-3206. United States Court of Appeals, Sixth Circuit. Aug. 11, 1986. — 1 — BEFORE: MARTIN and GUY, Circuit Judges; and SUHRHEINRICH, District Judge* ORDER — 2 — This pro se federal prisoner moves the Court for permission to proceed in forma pauperis in his appeal from a district court judgment summarily denying his motion to vacate his sentence filed under 28 U.S.C. Sec. 2255. The district court concluded upon a review of the cause that the petitioner was clearly not entitled to relief and, therefore, summarily dismissed the action pursuant to Rule 4 of the Rules Governing the Proceedings under 28 U.S.C. Sec. 2255. — 3 — Petitioner was convicted on three counts of willful failure to file United States income tax returns under 26 U.S.C. Sec. 7203. This Court affirmed his conviction on February 7, 1984; on March 26, 1985, we also affirmed the district court's subsequent judgment revoking petitioner's probation and imposing consecutive sentences. — 4 — In the instant case, petitioner once again seeks to challenge the imposition of his consecutive sentences as violative of the double jeopardy clause of the federal Constitution. Upon review of the cause, this Court concludes that the district court properly dismissed petitioner's action for the reasons stated by it. A review of the records and files of this case conclusively shows that the petitioner is not entitled to any relief. Imposition of the consecutive sentences in this case is well within the discretion of the district court. See Iannelli v. United States, 420 U.S. 770 (1975); United States v. Tucker, 404 U.S. 443 (1972); United States v. Moore, 653 F.2d 384 (9th Cir.), cert. denied, 454 U.S. 1102 (1981); United States v. Wylie, 625 F.2d 1371 (9th Cir. 1980), cert. denied, 449 U.S. 1080 (1981). It was, therefore, proper to summarily dismiss petitioner's case under Rule 4 of the Rules Governing Proceedings under 28 U.S.C. Sec. 2255. See United States v. Sanders, 723 F.2d 34 (8th Cir. 1983); United States v. Counts, 691 F.2d 348 (7th Cir. 1982); United States v. Cermack, 622 F.2d 1049 (1st Cir. 1980). — 5 — Furthermore, petitioner's suggestion of judicial bias fails to warrant the disqualification of the district court judge. See Davis v. Commissioner, 734 F.2d 1302 (8th Cir. 1984); Shaw v. Martin, 733 F.2d 304 (4th Cir.), cert. denied, 105 S.Ct. 230, reh'g denied, 105 S.Ct. 555 (1984); United States v. Story, 716 F.2d 1088 (6th Cir. 1983). — 6 — For these reasons, this panel unanimously agrees that oral argument is not necessary in this appeal. Rule 34(a), Federal Rules of Appellate Procedure. The petitioner's motion seeking permission to proceed in forma pauperis on appeal is, accordingly, denied, and the district court's judgment is hereby affirmed, pursuant to Rule 9(d)(3), Rules of the Sixth Circuit. Footnotes [-s] * The Honorable Richard F. Suhrheinrich, U.S. District Judge for the Eastern District of Michigan, sitting by designation