928 F. 2d 1134 - Winter v. United States

W.D.Ky.

AFFIRMED.

Before KRUPANSKY and DAVID A. NELSON, Circuit Judges, and GILMORE, District Judge.*

Julio Cesar Winter, a pro se federal prisoner, appeals the district court's order dismissing his motion to vacate sentence filed pursuant to 28 U.S.C. Sec. 2255.

In April 1990, Winter pled guilty, pursuant to a Fed.R.Crim.P. 11 plea agreement, to two counts of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). He was sentenced to thirty-three months imprisonment.

Subsequently, Winter, who had previously been represented by counsel, filed his Sec. 2255 motion asserting: (1) that his thirty-three month sentence constituted a breach of the plea agreement, which required the United States to recommend a twenty-one month sentence; (2) that his counsel was ineffective for failing to bring the alleged breach of the plea agreement to the attention of the sentencing judge; and (3) that he was denied due process because a different judge presided at his sentencing, because the judge who took his guilty plea was unable to perform that duty. After a review, the district court denied Winter's Sec. 2255 motion as meritless. Winter has filed a timely appeal.

Upon review, we conclude that Winter's assertions of error are meritless. First, Winter is bound by the terms of the plea agreement as revealed in open court, which do not include a term requiring the United States to recommend a twenty-one month sentence. See Baker v. United States, 781 F.2d 85, 90 (6th Cir.), cert. denied, 479 U.S. 1017 (1986). Second, Winter's appointed counsel was not ineffective. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Third, Winter was not prejudiced by the substitution of Judge Johnstone for Judge Ballantine at sentencing. United States Ex Rel. Fields v. Fitzpatrick, 548 F.2d 105, 107 and 108-09 (3rd Cir.1977); United States v. McCallie, 554 F.2d 770, 773-74 (6th Cir.1977).

Accordingly, the district court's judgment is hereby affirmed for the reasons stated in the district court's memorandum opinion filed September 21, 1990. Rule 9(b)(5), Rules of the Sixth Circuit.