Heath v. United States , 183 F. Supp. 2d 994 ( 2002 )

183 F. Supp. 2d 994 (2002)

Rodney HEATH, Plaintiff,
v.
UNITED STATES of America, Defendant.

No. 3:01CV7473.

United States District Court, N.D. Ohio, Western Division.

January 2, 2002.

Rodney Heath, Federal Correctional Institution, Milan, MI, pro se.

Thomas A. Karol, Office of the United States Attorney, Northern District of Ohio, Toledo, OH, for United States of America.

ORDER

CARR, District Judge.

This is a § 2255 post-conviction action in which the defendant claims that his sentence was unlawfully enhanced. He has not filed a brief in support of his petition or otherwise elaborated on his claim. The government's opposition appears, however, correctly to ascertain the gravamen of the defendant's claims, which are without merit.

Defendant failed to take a direct appeal. Thus, he has defaulted on his claims, which are therefore subject to dismissal without consideration of their merits. United States v. Frady, 456 U.S. 152, 159, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982).

Defendant's claim of unlawful sentence enhancement may be related to the three level increase in his Guideline offense level that resulted from evidence indicating that each of his three bank robberies had been accompanied by display of a pellet gun. A pellet gun is a "dangerous weapon," so that the enhancement under USSG § 2B3.1(b)(2)(E) was correct. See United States v. Woodard, 24 F.3d 872, 873 (6th Cir.1994) (enhancement for display of toy firearm appropriate).

To the extent that defendant complains that his sentence was improper because he was not indicted on a separate gun count, he is not entitled to relief. Such charge would have exposed the defendant to a sentence that was more severe than the sentence he received. There is no merit, accordingly, to this contention.

Finally, if the defendant, as is probably the case, is seeking to assert an Apprendi claim, any such contention is without merit. The defendant did not receive a sentence in excess of the statutory maximum; thus, the predicate for an Apprendi claim is not present in this case.

In light of the foregoing, it is hereby

ORDERED THAT the defendant's petition for relief under 28 U.S.C. § 2255 be, and the same hereby is denied.

So ordered.