Unpublished Dispositionjohn A. Haynes, Jr., Petitioner-appellant, v. United States of America, Respondent-appellee, 863 F.2d 48 (6th Cir. 1988)

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 the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

John A. Haynes, Jr., appeals the denial of his third motion to vacate his sentence for assault on government property in violation of 18 U.S.C. § 113(f). Haynes filed this motion under 28 U.S.C. § 2255, alleging that his counsel was ineffective due to a conflict of interest, which thus rendered his guilty plea invalid. The district court denied the motion as without merit.

Upon consideration, we affirm the judgment of the district court. We treat petitioner's motion as a petition for writ of error coram nobis because petitioner was not in "custody" under the attacked conviction when the motion was filed. See Ward v. Knoblock, 738 F.2d 134, 138-39 (6th Cir. 1984), cert. denied, 469 U.S. 1193 (1985). The government noted that the motion should be so construed in the district court. Cf. Pitts v. United States, 763 F.2d 197, 198 n. 1 (6th Cir. 1985) (per curiam) (motion treated under Sec. 2255 where government did not object).

The district court correctly concluded that petitioner's claim does not warrant relief. See Flippins v. United States, 747 F.2d 1089, 1091 (6th Cir. 1984) (per curiam). A review of the entire record reveals that petitioner cannot demonstrate a fundamentally unjust error which probably would have changed his plea had it been known.

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