IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20325
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID PHILLIP ISCHY,
Defendant-Appellant.
_____________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-1365
USDC No. H-89-CR-204-5
_____________________________________________
June 15, 1999
Before DAVIS, DUHÉ and PARKER, Circuit Judges.
PER CURIAM:*
David Phillip Ischy, federal prisoner #49020-079, appeals from
the denial of his motion for relief pursuant to 28 U.S.C. § 2255.
The magistrate judge, who entered judgment by consent of the
parties, granted Ischy a certificate of appealability. Ischy
contends that there was an insufficient factual basis for his
guilty plea of using or carrying a firearm during and in connection
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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with a drug-trafficking offense; that the magistrate judge should
have held an evidentiary hearing on his contention that he received
ineffective assistance of counsel regarding two plea offers
extended by the Government; and that the magistrate judge should
have held an evidentiary hearing on his claim that the Government
breached its plea agreement with him by not recommending a
reduction of sentence pursuant to FED. R. CRIM. P. 35(b).
Ischy has failed to brief whether the magistrate judge erred
by disposing of his factual-basis contention as procedurally
barred. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987). Moreover, the factual basis in the
record provided an adequate factual basis for Ischy’s plea.
The record conclusively showed that Ischy was not entitled to
relief regarding the claims for which he argues the magistrate
judge should have held an evidentiary hearing. First, Ischy has
not shown a reasonable probability that he would have received a
sentence significantly less severe than the sentence he ultimately
received had counsel conveyed the Government’s second plea offer to
him. See Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995).
Second, the plea agreement did not require the Government to seek
a reduction of Ischy’s sentence in return for post-sentencing
cooperation. The magistrate judge need not have held an
evidentiary hearing on Ischy’s contentions. United States v.
Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).
Ischy’s contention that the magistrate judge should have held
an evidentiary hearing on his contention that counsel was
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ineffective for failing to advise him properly regarding the
Government’s first plea offer is likewise without merit. It is
unclear from the record whether, as Ischy alleges, counsel failed
to clearly communicate to Ischy the expiration date of the offer.
However, there is no reasonable probability that Ischy would have
received a significantly less severe sentence had Ischy accepted
the Government’s first plea offer. See Teague, 60 F.3d at 1172.
Therefore, Ischy’s ineffective assistance of counsel claim fails to
establish the prejudice prong of Strickland, which defeats his
claim. See Strickland v. Washington, 466 U.S. 668, 697 (1984).
Because the record conclusively establishes that Ischy was not
entitled to relief, neither was he entitled to an evidentiary
hearing on his contention. Bartholomew, 974 F.2d at 41.
Based on the foregoing, we affirm the order denying Ischy’s
request for evidentiary hearing and denying relief on his § 2255
claims.
AFFIRMED.
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