919 F2d 738 Davis v. Sowders

919 F.2d 738

Leslie Wayne DAVIS, Petitioner-Appellant,
Dewey SOWDERS, Warden, Respondent-Appellee.

No. 90-5514.

United States Court of Appeals, Sixth Circuit.

Dec. 6, 1990.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

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Before RYAN and ALAN E. NORRIS, Circuit Judges, and JOINER, Senior District Judge.*



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


Leslie Wayne Davis appeals the dismissal of his petition for a writ of habeas corpus filed under 28 U.S.C. Sec. 2254. Pursuant to a guilty plea, Davis pleaded guilty to two counts of second-degree assault and one count of attempting to obtain a controlled substance with a forged prescription in the Whitley County, Kentucky, Circuit Court in May, 1986. The sentencing court rejected a recommendation from the prosecutor that Davis be sentenced to concurrent 8 year terms for the assault convictions, with a concurrent 2 year term for the drug conviction. Instead, the court sentenced Davis to consecutive 10 year sentences, with a concurrent 5 year term for the drug conviction. The Kentucky Supreme Court affirmed the sentences on direct appeal.


Next, Davis sought habeas relief in the district court, alleging that he was denied fundamental fairness because he was not afforded an opportunity to withdraw his pleas after the sentencing court rejected the recommended sentence. The magistrate recommended that the petition be denied, and petitioner filed objections. The district court adopted the magistrate's recommendation and dismissed the petition. See Carwile v. Smith, 874 F.2d 382, 385-86 (6th Cir.), cert. denied, 110 S.Ct. 346 (1989).


Upon consideration, we affirm the judgment of the district court for the reasons stated in the magistrate's proposed findings of fact and recommendation filed January 22, 1990, and adopted by the district court by its order filed March 19, 1990. Rule 9(b)(5), Rules of the Sixth Circuit.


The Honorable Charles W. Joiner, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation