James Schumacher v. United States , 865 F.2d 260 ( 1988 )

865 F.2d 260

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

No. 87-1958.

United States Court of Appeals, Sixth Circuit.

Dec. 9, 1988.

Before BOYCE F. MARTIN, Jr., NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges.

ORDER

1

James Schumacher appeals the district court's judgment dismissing his petition to withdraw his guilty plea filed alternatively as a motion under 28 U.S.C. Sec. 2255 and as an application for a writ of error coram nobis. The appeal 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).

2

After serving his sentence, Schumacher challenged his conviction for embezzlement claiming that it was based on an involuntary guilty plea due to ineffective assistance of counsel and his own mental and physical incompetence.

3

The district court denied relief under 28 U.S.C. Sec. 2255 concluding that Schumacher's plea was voluntary and intelligent.

4

Upon consideration, we construe Schumacher's suit as an application for a writ of error coram nobis, and affirm the denial of relief because Schumacher failed to demonstrate that he pled guilty due to a known fundamental error of fact. See Flippins v. United States, 747 F.2d 1089 (6th Cir.) (per curiam), cert. denied, 107 S. Ct. 2197 (1984); United States v. Norman, 391 F.2d 212, 213 (6th Cir.), cert. denied, 390 U.S. 1014 (1968).

5

Accordingly, we hereby affirm the district court's judgment. Rule 9(b)(5), Rules of the Sixth Circuit.