               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that this opinion should not be published and is not precedent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.

                                  1
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


                                          2
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.




                                3
