James Lawrence Browning, Petitioner-appellant, v. United States of America, Respondent-appellee, 891 F.2d 289 (6th Cir. 1989)

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U.S. Court of Appeals for the Sixth Circuit - 891 F.2d 289 (6th Cir. 1989)

Dec. 7, 1989


Before KEITH, NATHANIEL R. JONES and BOGGS, Circuit Judges.


ORDER

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).

Petitioner filed a motion to vacate under 28 U.S.C. § 2255 in which he challenged the constitutionality of 1988 convictions for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1) and carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c) (1). The case was referred to a magistrate who recommended that the petition be denied. The district court adopted the recommendation, over petitioner's objections, and this appeal followed. The parties have briefed the issues, petitioner proceeding in his own behalf.

Upon consideration, we find ample support in the record and law for the district court's decision. Petitioner Browning claimed that the convictions, entered after he pleaded guilty to the two-count indictment, should be vacated because he received ineffective assistance of counsel prior to entering his plea. The district court correctly noted that, as one of the burdens assigned to petitioner under Hill v. Lockhart, 474 U.S. 52, 58-59 (1985), petitioner must show that there is a reasonable probability that he would have gone to trial but for egregious attorney error. Petitioner's detailed attempt to demonstrate the flawed nature of the searches involved in the underlying criminal case is wholly speculative and ineffective under Hill. See Bowen v. Foltz, 763 F.2d 191, 194 (6th Cir. 1985). The appeal is meritless.

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