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890 F2d 417 Scott v. Brown

890 F.2d 417

Edward James SCOTT, Petitioner-Appellant,
v.
Gerald BROWN, Respondent-Appellee.

No. 88-1813.

United States Court of Appeals, Sixth Circuit.

Nov. 28, 1989.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before NATHANIEL R. JONES and MILBURN, Circuit Judges, and LIVELY, Senior Circuit Judge.

ORDER

1

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).

2

Edward James Scott filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 alleging he was denied effective assistance of counsel. The district court dismissed the petition after finding that counsel rendered effective assistance. On appeal, Scott asserts the same claim and further argues that the district court's reliance on the state and appellate courts' recitation of facts was erroneous.

3

Scott claimed his attorney failed to advise him of a reduced sentence that the prosecution had offered on the day of his arraignment on the concealed weapon charge. We have reviewed the relevant facts and transcripts and conclude, contrary to Scott's claim, that an offer of a reduced sentence was not made and that counsel rendered effective assistance. Wherefore, the dismissal was proper as lacking merit because Scott failed to prove that counsel's performance was deficient and that, but for counsel's deficiency, he would have insisted on proceeding with trial. See Hill v. Lockart, 474 U.S. 52, 59 (1985); Strickland v. Washington, 466 U.S. 668 (1984).

4

We further reject Scott's argument that the findings of fact are not subject to a presumption of correctness as he has failed to prove by convincing evidence that the facts were erroneous. See Sumner v. Mata, 455 U.S. 591 (1982) (per curiam).

5

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