Frank Irvin, III v. United States

875 F.2d 864, 1989 U.S. App. LEXIS 7292, 1989 WL 54151

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 23, 1989
• Docket: 88-6296
• Status: Unpublished

Opinion

875 F.2d 864

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Frank IRVIN, III, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 88-6296.

Sixth Circuit.

May 23, 1989.

Before ENGEL, Chief Judge and MERRITT and KRUPANSKY, Circuit Judges.

ORDER

Frank Irvin, III, appeals the judgment of the district court denying his motion to vacate his sentence filed pursuant to 28 U.S.C. Sec. 2255. 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).

On August 21, 1968, Irvin pleaded guilty to violating Title 18 U.S.C. Sec. 2113(a) and (d). He was sentenced to 22 years for assaulting or jeopardizing a person's life while attempting to rob a bank. On April 22, 1988, Irvin filed a motion to vacate sentence in which he raised four grounds: 1) his guilty plea was involuntary; 2) his confession was coerced; 3) he received ineffective assistance of counsel; and 4) the privilege against self-incrimination was violated. Irvin's principally argues that he pleaded guilty because his attorney told him of a supposed plea agreement whereby he would only receive a ten year sentence.

The district court denied Irvin's motion because the twenty year delay prejudiced the government's ability to respond; the motion was also successive.

Upon review, we find no error. The government's ability to respond to Irvin's motion was clearly prejudiced by the twenty year delay. Moreover, Irvin offers no explanation why he waited twenty years to assert his claim. Finally, there is a strong inference of invalidity that attaches as a result of failure to assert the claims earlier. Malone v. United States, 299 F.2d 254, 256 (6th Cir.), cert. denied, 371 U.S. 836 (1962).

Accordingly, for the reasons set forth in the district court's memorandum opinion dated September 15, 1988, we hereby affirm the judgment of the district court pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.