Charles Junior Thomas, Petitioner-appellant, v. United States of America, Respondent-appellee, 945 F.2d 405 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 945 F.2d 405 (6th Cir. 1991)

Sept. 30, 1991


Before KENNEDY and DAVID A. NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge.


ORDER

Charles Junior Thomas is an Indiana state prisoner who appeals the dismissal of a motion to vacate his prior federal sentence under 28 U.S.C. § 2255. His case has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon review, the panel unanimously agrees that oral argument is not needed in this case. Fed. R. App. P. 34(a).

Thomas does not dispute the district court's finding that he has completed service of his federal sentence. However, Thomas's federal conviction was used to enhance his current state sentence as an habitual offender. He now alleges that his federal plea was invalid and that his counsel in the prior federal proceeding was ineffective.

Thomas's case was referred to a magistrate, who found that the government had been prejudiced by the 16-year delay between Thomas's conviction and the filing of his § 2255 motion. Rule 9(a), Rules Governing Section 2255 Proceedings. On April 9, 1990, the district court dismissed the motion for lack of jurisdiction because Thomas was no longer in custody pursuant to his federal conviction. Maleng v. Cook, 490 U.S. 488, 492 (1989) (per curiam). It is from this judgment that Thomas now appeals. He has also filed a motion for appointment of counsel on appeal.

We conclude that the motion to vacate Thomas's sentence was properly dismissed for the reasons stated in the district court's well-reasoned opinion of April 9, 1990. See Gavin v. Wells, 914 F.2d 97, 98 (6th Cir. 1990). Accordingly, Thomas's motion for counsel is denied and the district court's judgment is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.