Claude O. Phillips v. United States , 881 F.2d 1077 ( 1989 )

881 F.2d 1077

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

No. 88-6275.

United States Court of Appeals, Sixth Circuit.

Aug. 11, 1989.

1

Before NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges, and RICHARD B. MCQUADE, Jr., District Judge.*

ORDER

2

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 briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

Claude O. Phillips appeals the denial of his motion to vacate sentence filed under 28 U.S.C. Sec. 2255 in which he alleged that his guilty plea was involuntary. Phillips pled guilty to a single count of possession of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(g) and was sentenced to the maximum five years imprisonment. Pursuant to a plea bargain agreement, a second count of firearms possession was dismissed.

4

Phillips alleged that he was misinformed that he was subject to consecutive five year sentences if convicted of both counts of firearms possession. Depending upon the government's proof, consecutive sentences may have been applicable. See United States v. Grinkiewicz, 873 F.2d 253, 255 (11th Cir.1989) (per curiam). The matter was discussed at sentencing and the court and counsel were of the opinion that consecutive sentences could have been rendered. However, neither the court nor counsel gave petitioner any assurance that this was certain. In fact, both went to great lengths to note that this was merely an opinion. Under these circumstances, the district court properly concluded that petitioner failed to show entitlement to relief under the standard enunciated in Hill v. Lockhart, 474 U.S. 52 (1985).

5

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

*

The Honorable Richard B. McQuade, Jr., U.S. District Judge for the Northern District of Ohio, sitting by designation