Unpublished Dispositioneugene Byrns, Petitioner-appellant, v. United States of America, Respondent-appellee, 883 F.2d 74 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 883 F.2d 74 (6th Cir. 1989) Aug. 18, 1989

Before NATHANIEL R. JONES and MILBURN, Circuit Judges and SAM H. BELL, District Judge.* 

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

Eugene Byrns appeals pro se the denial of his motion to vacate sentence filed under 28 U.S.C. § 2255. Byrns entered a guilty plea in 1968 to a federal charge of kidnapping and was sentenced to ten years imprisonment. He is now arguing that his plea was invalid because it was induced by a plea agreement that his sentence would run concurrently with a state sentence, which was subsequently not honored. The district court denied the motion pursuant to Rule 9(a), Rules Governing Proceedings in the United States District Courts under 28 U.S.C. § 2255.

Upon consideration of the record in this case, we conclude that this motion was properly denied due to prejudicial delay. We note that, as the sentence under attack has expired, relief would more properly have been sought by a petition for a writ of error coram nobis; however, we will accept the parties' characterization of the action in the district court. See Pitts v. United States, 763 F.2d 197, 198 n. 1 (6th Cir. 1985) (per curiam). A clear showing of prejudice due to delay was made in this case, and Byrns has not attempted to explain why he was unable to raise this argument until nineteen years after his sentence was imposed. See Moore v. Smith, 694 F.2d 115, 118 (6th Cir. 1982), cert. denied, 460 U.S. 1044 (1983).

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

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The Honorable Sam H. Bell, U.S. District Judge for the Northern District of Ohio, sitting by designation