                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 97-3040
                                  ___________
Rickey A. Lee,                         *
                                       *
            Petitioner-Appellant,      * Appeal from the United States
                                       * District Court for the
   v.                                  * Western District of Missouri.
                                       *
James A. Gammon, Superintendent,       *
Moberly Correctional Center; Jeremiah *
Nixon, Attorney General, State of      *
Missouri,                              *
                                       *
            Respondents-Appellees.     *
                                  ___________

                            Submitted: June 11, 1998
                                Filed: June 24, 1998
                                 ___________

Before HANSEN and MURPHY, Circuit Judges, and DOTY1, District Judge.
                           ___________

MURPHY, Circuit Judge.




      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
       Rickey Lee appeals from the denial by the district court2 of his petition for
habeas corpus under 28 U.S.C. § 2254. He claims that his constitutional rights were
violated because his guilty pleas were involuntary. We affirm.

       Lee was charged by the state of Missouri with first degree murder and armed
criminal action. He was also facing revocation of his federal probation. Under the plea
agreement negotiated by his attorney in state court he was to receive concurrent twenty
year sentences for a reduced charge of second degree murder and for armed criminal
action. Lee claims that he understood from his attorney that any federal sentence
would also be concurrent and that he pled guilty with that understanding. The actual
period of imprisonment imposed by the federal court was twenty four months
consecutive to the state terms.

       Lee filed a petition for postconviction relief in the state trial court, alleging that
his guilty pleas were involuntary and that he therefore should not have been found
guilty. His attorney testified at the evidentiary hearing held on his petition that he
discussed the implications of the guilty pleas with Lee. He testified that he explained
that the federal court could impose a concurrent sentence, but that the state plea
agreement would not control the federal court. After hearing the evidence the
postconviction court found that Lee’s attorney had never promised that the state and
federal sentences would run concurrently. The petition was denied, and the Missouri
Court of Appeals affirmed. Lee v. State, 912 S.W.2d 591 (Mo. App. W.D. 1995).

      Lee argues that he is entitled to a writ of habeas corpus because his guilty pleas
were entered involuntarily. He argues that his counsel did not fully advise him about
the nature and consequences of the plea agreement or that the state agreement for
concurrent sentences was not binding on the federal court. He claims that he would


       2
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.

                                            -2-
have proceeded to trial on the state charges of first degree murder and armed criminal
action rather than enter guilty pleas if he had known that the federal probation
revocation could result in a consecutive term.

        The state court specifically found that Lee’s counsel had informed him that the
federal term for violation of his probation would not necessarily run concurrently, and
this factual finding by the state court is presumed to be correct unless contradicted by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Lee has not rebutted this
presumption of correctness and has not shown that his guilty pleas were involuntary.
Lee cites Finch v. Vaughn, 67 F.3d 909 (11th Cir. 1995), in support of his position.
That case was different because there was no state court finding there that counsel had
advised that consecutive sentences were possible. Id at 912-13. The record supports
the state court finding that Lee was informed that his state and federal sentences would
not necessarily run concurrently, and he thus has not made the required showing that
his pleas were not knowing and voluntary. Mabry v. Johnson, 104 S.Ct. 2543, 2547
(1984).

      Accordingly, we affirm the judgment of the district court.

      A true copy.

             ATTEST:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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