Clayton Sheldon Creek v. United States , 41 F.3d 401 ( 1994 )

41 F.3d 401

Clayton Sheldon CREEK, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 94-1568.

United States Court of Appeals,
Eighth Circuit.

Submitted Oct. 14, 1994.
Decided Dec. 5, 1994.

Al Arendt, Pierre, SD, for appellant.

Mikal Hanson, Asst. U.S. Atty., Pierre, SD, for appellee.

Before HANSEN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

PER CURIAM.

1

Clayton Sheldon Creek appeals the district court's1 dismissal of his petition under 28 U.S.C. Sec. 2255 to set aside and vacate his sentence. We affirm.

2

Creek pleaded guilty to aggravated sexual abuse in violation of 18 U.S.C. Sec. 2241(a) for raping his cousin and was sentenced to 96 months of imprisonment. He subsequently filed this Sec. 2255 action, alleging that he was coerced into pleading guilty, he was denied effective assistance of counsel, the alleged victim did not sign the complaint, and his guilty plea was unlawfully induced. The district court adopted the recommendations and findings of the magistrate judge2 rejecting Creek's contentions and dismissed the petition with prejudice.

3

Creek argued that he was denied effective assistance of counsel because his attorney "coerced" him into pleading guilty by informing him that if he did not do so he could receive life imprisonment. The magistrate judge, after reviewing Creek's statements made under oath at his change-of-plea hearing, determined that his guilty plea was not coerced but was made voluntarily. Creek also argued that he was denied effective assistance of counsel because his attorney provided incorrect advice concerning his sentence by informing him that he would receive 14 months of imprisonment if he pleaded guilty. The magistrate judge found that Creek's attorney properly advised him of the appropriate Sentencing Guidelines range for his offense based in part upon a transcript of a conference between Creek and his attorney which was reported by a court reporter. After reviewing the record, we cannot find that the district court erred in adopting the well-reasoned findings and recommendations of the magistrate judge and accordingly we affirm. See 8th Cir.R. 47B.

1

The Honorable John B. Jones, then Chief Judge, United States District Court for the District of South Dakota

2

The Honorable Mark A. Moreno, United States Magistrate Judge for the District of South Dakota