Unpublished Dispositionsamuel J.m. Davis, Jr., A/k/a John M. Davis, Petitioner-appellant, v. United States of America, Respondent-appellee, 863 F.2d 47 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 863 F.2d 47 (6th Cir. 1988) Nov. 22, 1988

Before DAVID A. NELSON and BOGGS, Circuit Judges, and RICHARD A. ENSLEN, U.S. District Judge.* 


Samuel J.M. Davis, Jr., moves this court for in forma pauperis status on appeal from the district court's denial of his motion to vacate his plea agreement filed under 28 U.S.C. § 2255. The appeal has been referred to a panel pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the certified record, petitioner's presentence report and the parties' briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Davis claimed that his sentence is based on an involuntary guilty plea due to his withdrawal from drugs at the time he entered the plea and the plea agreement. He also claimed, in a motion to amend, that his plea was rendered involuntary due to ineffective assistance of counsel.

Upon consideration of the government's response, the district court denied relief, concluding that Davis was competent throughout his plea and sentencing proceedings.

On appeal, Davis abandons his claim of ineffective assistance of counsel by failing to challenge the district court's failure to rule on his motion to amend. See McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir. 1986).

Upon consideration, we conclude the petitioner entered a valid plea of guilty as it represents a voluntary and intelligent choice among his alternatives under the totality of the circumstances. See North Carolina v. Alford, 400 U.S. 25, 31 (1970); Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988).

Accordingly, we hereby grant Davis' motion to proceed in forma pauperis and affirm the judgment of the district court. Rule 9(b) (5), Rules of the Sixth Circuit.


The Honorable Richard A. Enslen, U.S. District Judge for the Western District of Michigan, sitting by designation