Unpublished Dispositionalvin Davis, Petitioner-appellant, v. Mike O'dea, Warden, Eastern Kentucky Correctional Complex,respondent-appellee, 928 F.2d 404 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 928 F.2d 404 (6th Cir. 1991)

March 19, 1991


E.D. Ky., No. 90-00209; Hood (M), J.

E.D. Ky.

AFFIRMED.

Before KEITH and BOYCE F. MARTIN, JR., Circuit Judges, and CONTIE, Senior Circuit Judge.


ORDER

Alvin Davis, a Kentucky state prisoner, appeals pro se the district court's order dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. 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 briefs and the record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Davis was convicted following a jury trial of first degree assault and being a second degree persistent felony offender. He was originally sentenced to twenty years on each count. On direct appeal, the Kentucky Supreme Court remanded the case to correct the sentence, to reflect that Davis was sentenced to a total of twenty years only pursuant to the persistent felon conviction. In this petition, the main argument raised by Davis is that his assault conviction was vacated by the Kentucky Supreme Court and his persistent felon conviction must therefore also be vacated as it cannot stand alone.

Upon review, this court concludes that Davis's argument is lacking in factual support. He has misconstrued the action of the Kentucky Supreme Court as vacating his assault conviction. Only the original, improper sentence for that conviction has been vacated. Because the only issue argued by Davis in this appeal is meritless, the dismissal of this petition is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.