Unpublished Dispositionearl Ellery Wright, Petitioner-appellant, v. United States of America, Respondent-appellee, 869 F.2d 1494 (6th Cir. 1989)

ORDER

Petitioner Wright moves for quo warranto relief and for counsel on appeal from the district court's order denying Wright's motion to correct an illegal sentence. Fed. R. Crim. P. 35(a). The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

A Cleveland, Ohio, federal jury convicted Wright of two counts of armed bank robbery. He received a fifty year sentence. In his Rule 35 motion, Wright alleged that, prior to trial, the district court violated Fed. R. Crim. P. 11 during guilty plea negotiations. Wright also alleged that this court was biased against him because the judge who presided over his trial is currently a member of this court.

The district court held that the trial judge did not violate Rule 11(e) (1) when he became active in the proceedings after the parties presented an agreement to the court. We agree with this conclusion. See United States v. Adams, 634 F.2d 830, 835 (5th Cir. 1981). We also hold that the trial judge did not violate Rule 11(e) (4) when he did not inform the parties of his rejection of the plea agreement on the record. The judge did allow the petitioner to withdraw his plea, so the petitioner's substantive rights were protected. Any technical violation of Rule 11 does not warrant collateral relief. See United States v. Timmreck, 441 U.S. 780, 784-85 (1979). We also agree with the district court's holding that the presence of the trial judge on this court does not mean that petitioner Wright has not received fair consideration of his claims.

The motions for quo warranto relief and for counsel are denied. The order of the district court is affirmed under Rule 9(b) (5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.