919 F. 2d 141 - McCann III v. United States

John H. McCann, III, a federal prisoner, appeals through counsel the denial of his motion to vacate sentence filed under 28 U.S.C. Sec. 2255. The 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 briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

McCann entered a guilty plea to engaging in a continuing criminal enterprise, five counts of possession with intent to distribute cocaine, two counts of conspiracy to defraud the United States, three counts of tax evasion, and two counts of filing false tax returns. He received concurrent maximum sentences on each charge, including life without parole on the continuing criminal enterprise conviction. He challenged his sentence on eighth amendment grounds on appeal; the conviction was upheld by this court. In this motion, McCann alleged that his guilty plea was involuntary because the judge had indicated that he would receive a maximum sentence of twenty-five years. He also moved for recusal of the judge based on 28 U.S.C. Secs. 455(a) and (b)(1). The district court denied the motion, finding it to be without foundation.

Upon consideration, this court concludes that the motion was properly denied without an evidentiary hearing, as the record conclusively demonstrates that McCann is not entitled to relief. See Baker v. United States, 781 F.2d 85, 92 (6th Cir.), cert. denied, 479 U.S. 1017 (1986). McCann's contention is incredible in the face of his testimony at the plea hearing, see Baker, 781 F.2d at 90, the signed plea agreement, his letter to the judge prior to sentence, and his testimony at the trial of a co-defendant.

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