MICHAEL HARVEY VAIL, PETITIONER-APPELLANT,
v.
RAYMOND K. PROCUNIER, DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE
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The court held that the appellant's claims were without merit and denied his application for a certificate of probable cause and leave to appeal in forma pauperis.
Appellant contended that a prior conviction used for sentence enhancement was invalid and that he was denied effective assistance of counsel. The prio…
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Treating appellant’s notice of appeal as an application for a certificate of probable cause, Fed.R.App.P. 22(b), the application is DENIED. Appellant has not made a substantial showing of the denial of a federal right. Fabian v. Reed, 714 F. 2d 39 (5th Cir.1983).
Infirmities in state habeas corpus proceedings do not constitute grounds for federal habeas relief. See Williams v. State of Missouri, 640 F. 2d 140 (8th Cir.), cert. denied, 451 U.S. 990, 101 S.Ct. 2328, 68 L.Ed.2d 849 (1981). Because this allegation is insufficient, as a matter of law, the district court improvidently dismissed the cause for failure to exhaust state remedies thereon. See Colvin v. Estelle, 506 F. 2d 747 (5th Cir.1975).
Vail contends that a prior conviction used for enhancement of his current sentence is invalid for several reasons. This assertion is without merit; his plea of “true” to the enhancement count, while represented by counsel, constituted a waiver of any complaint concerning the prior conviction. Scott v. Maggio, 695 F. 2d 916 (5th Cir.), cert. denied, — U.S. -, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983); Kemph v. Estelle, 621 F. 2d 162 (5th Cir.1980), Nor is Vail entitled to relief on his conclusional allegation that he was denied effective assistance of counsel during the sentencing phase of his current conviction. The statement of facts amply demonstrates that his “true” plea was knowingly and voluntarily made. See Dugar v. Maggio, 710 F. 2d 836 (5th Cir.1983), and authorities cited therein.
IT IS FURTHER ORDERED that appellant’s application for leave to appeal in forma pauperis is DENIED.
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Kirby v. Dutton, 794 F.2d 245 (6th Cir. 1986)
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State OF Mo., 640 F.2d 140 (8th Cir. 1981)
- Brisbon v. Illinois, 451 U.S. 990 (U.S. 1981)
- Martin v. Fauver, 451 U.S. 990 (U.S. 1981)
- Fabian v. Reed, 714 F.2d 39 (5th Cir. 1983)
- Kemph v. Estelle, 621 F.2d 162 (5th Cir. 1980)
- Scott v. Maggio, 695 F.2d 916 (5th Cir. 1983)
- Colvin v. Estelle, 506 F.2d 747 (5th Cir. 1975)