Russell Keith Berry v. Larry Lack and Attorney General of Tennessee

831 F.2d 293, 1987 U.S. App. LEXIS 13704, 1987 WL 38650

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 9, 1987
• Docket: 87-5040
• Status: Unpublished

Opinion

831 F.2d 293

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Russell Keith BERRY, Petitioner-Appellant,
v.
Larry LACK and Attorney General of Tennessee, Respondents-Appellees.

No. 87-5040.

United States Court of Appeals, Sixth Circuit.

Oct. 9, 1987.

Before KEITH and MILBURN, Circuit Judges, and GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.

ORDER

This pro se petitioner appeals the district court's denial of his habeas corpus petition brought pursuant to 28 U.S.C. Sec. 2254. This appeal 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 agrees unanimously that oral argument is not needed. Fed.R.App.P. 34(a).

Petitioner was convicted by a jury in 1978 of the first degree murder of his father-in-law and sentenced to death. The Tennessee Supreme Court reversed his conviction upon finding that certain statements made by petitioner should have been excluded because he was denied the right to counsel. A retrial was scheduled; however, the petitioner entered a guilty plea before trial and accepted a life sentence in the state penitentiary.

Upon review, we affirm the district court's judgment because petitioner has not asserted grounds which entitle him to habeas corpus relief.

First, we agree with the district court's conclusion that petitioner failed to show that he received ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). We also conclude that petitioner's claim that his guilty plea was involuntary and unknowingly entered is without merit. The record shows that petitioner's plea was valid, and his claim that he pled guilty in order to avoid returning to death row is insufficient to invalidate his guilty plea. See Brady v. United States, 397 U.S. 742 (1970); Baker v. United States, 781 F.2d 85 (6th Cir.), cert. denied, 107 S.Ct. 667 (1986).

Habeas corpus is not available to challenge state post-conviction proceedings. Kirby v. Dutton, 794 F.2d 245 (6th Cir.1986). His claim that he was denied a fair hearing in state court on his petition for post-conviction relief is therefore without merit.

Finally, the district court did not abuse its discretion in dismissing this petition without a hearing because the facts were sufficiently developed at the state court hearing. See Brofford v. Marshall, 751 F.2d 845 (6th Cir.1984), cert. denied, 106 S.Ct. 194 (1985).

The order of the district court is accordingly affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.