Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.john B. Devore, Jr., Appellant, v. United States of America, Appellee, 989 F.2d 504 (8th Cir. 1993)

John B. DeVore, Jr., a federal inmate, appeals the district court's¹  denial of his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. We affirm.

In 1987 a jury convicted DeVore of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) (count I), using a deadly weapon in the commission of a violent federal crime in violation of 18 U.S.C. § 924(c) (count II), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(h) (count III). The district court sentenced DeVore to prison terms of ten years on count I, five years on count II, and three years on count III. The court imposed the sentence on count II to run consecutively to count I, and the sentence on count III to run concurrently to count I. This court affirmed the judgment of conviction. United States v. DeVore, 839 F.2d 1330, 1333 (8th Cir. 1988).

In this section 2255 motion, DeVore claimed that the consecutive sentences imposed for the convictions under sections 2113(d) and 924(c) constituted double jeopardy because the court effectively imposed two penalties for the same conduct. He also claimed that his counsel was ineffective in failing to raise this issue on direct appeal.

The government did not respond to DeVore's motion. Relying on our previous rejections of the same double jeopardy argument, see United States v. Halford, 948 F.2d 1054, 1056-57 (8th Cir. 1991), cert. denied, 112 S. Ct. 1700 (1992); United States v. Doffin, 791 F.2d 118, 120-21 (8th Cir.) (per curiam), cert. denied, 479 U.S. 861 (1986), the magistrate judge recommended that the district court deny the motion. DeVore did not object. The district court adopted the magistrate judge's recommendation and denied the motion.

DeVore's double jeopardy argument is foreclosed by our decisions in Halford and Doffin, and therefore the district court correctly rejected the claim. Although the district court did not address the ineffective assistance claim, we conclude that remand is unwarranted because the claim is meritless. Reasonable counsel would have determined that a double jeopardy argument could not have prevailed on direct appeal in light of our decisions in Halford and Doffin. Thus, DeVore cannot establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).

The judgment is affirmed.