Ronald Ervin Gibson, Petitioner-appellant, v. State of North Carolina, Respondent-appellee, 4 F.3d 985 (4th Cir. 1993)

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US Court of Appeals for the Fourth Circuit - 4 F.3d 985 (4th Cir. 1993) Submitted: August 30, 1993. Sept. 13, 1993

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert D. Potter, District Judge. (CA-90-283-P-C-C)

Kenneth P. Andresen, Caudle & Spears, Charlotte, North Carolina, for Appellant.

Lacy Herman Thornburg, Office of the Attorney General of North Carolina, Raleigh, North Carolina, for Appellee.



Before PHILLIPS and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.



Ronald Ervin Gibson seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C.Sec. 2254 (1988). Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court on the ineffective assistance of counsel claims. Gibson v. State of North Carolina, No. CA-90-283-P-C-C (W.D.N.C. Mar. 4, 1992). With respect to the invalid guilty plea claim, we find that the facts as stated by Gibson show the seven-year sentence was necessarily speculative, because at the time he entered the plea he did not know whether he would receive the substantial assistance finding. Such a prediction by counsel is insufficient to justify relief. See Little v. Allsbrook, 731 F.2d 238 (4th Cir. 1984). Further, even assuming that the alleged seven-year sentence guarantee states a constitutional claim, Gibson failed to carry his burden of showing that he thought he was guaranteed a seven-year sentence if he received the substantial assistance finding. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.