                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-4020
                                     ___________

United States of America,                 *
                                          *
                    Appellee,             * Appeal from the United States
                                          * District Court for the Southern
      v.                                  * District of Iowa.
                                          *
Shawn Eugene Davis,                       *      [UNPUBLISHED]
                                          *
                    Appellant.            *
                                     ___________

                                Submitted: September 12, 2000

                                    Filed: October 16, 2000
                                     ___________

Before RICHARD S. ARNOLD, FAGG, and BYE, Circuit Judges.
                           ___________

PER CURIAM.

       The Government charged Shawn Eugene Davis with conspiracy to distribute and
possess with intent to distribute crack cocaine, using and carrying a firearm during and
in relation to the drug conspiracy, illegally possessing a firearm, possessing crack
cocaine, and two counts of distributing crack cocaine. Davis pleaded guilty to the
conspiracy charge, and the Government dropped the other charges. The district court
sentenced Davis to 262 months in prison. Davis made no direct appeal, but later filed
a pro se motion to vacate, set aside or correct his sentence, see 28 U.S.C. § 2255,
claiming ineffective assistance of counsel. In his motion, Davis contends trial counsel
encouraged Davis to enter a guilty plea based on counsel's erroneous belief that Davis
faced a mandatory life sentence under the "three strikes" law, 18 U.S.C. § 3559(c),
which Congress enacted on September 13, 1994, after the conspiracy and other charged
crimes occurred. See United States v. Farmer, 73 F.3d 836, 841 (8th Cir. 1996). Davis
also contends trial counsel did not adequately review the applicability of § 3559(c) in
Davis's case before advising him to enter a guilty plea, trial counsel did not tell Davis
he could attempt to withdraw his guilty plea, and appellate counsel did not file a direct
appeal. The district court denied the motion without a hearing and Davis appeals.

       A § 2255 motion "'can be dismissed without a hearing if (1) the petitioner's
allegations, accepted as true, would not entitle the petitioner to relief, or (2) the
allegations cannot be accepted as true because they are contradicted by the record,
inherently incredible or conclusions rather than statements of fact.'" Delgado v. United
States, 162 F.3d 981, 983 (8th Cir. 1998) (quoting Engelen v. United States, 68 F.3d
238, 240 (8th Cir. 1995)). To establish ineffective assistance of counsel, Davis must
show both that his attorney's performance was constitutionally deficient and that the
deficient performance prejudiced his defense. See Matthews v. United States, 114 F.3d
112, 113 (8th Cir. 1997). Because Davis pleaded guilty, to prove prejudice he must
show "'there is a reasonable probability that, but for counsel's errors, he would not have
pleaded guilty and would have insisted on going to trial.'" Id. at 114 (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985)). Davis is bound by his plea and resulting conviction
unless he can show his attorney's ineffective assistance rendered his plea involuntary.
Davis cannot make this showing.

       Before the plea agreement was reached, the Government told Davis's attorney
it might supersede the indictment and add charges relating to an incident in March
1996. If the Government had done so, § 3559(c) would have applied. Thus, defense
counsel did not misadvise Davis by warning him of possible exposure to a mandatory
life sentence, and Davis has not shown his guilty plea was induced by ineffective
assistance of counsel.

                                           -2-
       Davis's claim that trial counsel failed to inform him he could attempt to withdraw
his guilty plea likewise fails. Because Davis cannot show his plea was involuntary, he
has no basis for withdrawing his plea, and his attorney's failure to advise him he could
withdraw his plea was not deficient performance. Davis suffered no prejudice from
appellate counsel's failure to file a direct appeal because ineffective assistance claims
are generally presented in collateral proceedings and not on direct appeal. See Garrett
v. United States, 78 F.3d 1296, 1304 (9th Cir. 1996). In addition, Davis's only
assertion that he instructed appellate counsel to file an appeal is an unverified statement
in his brief, and nothing in the record corroborates the statement. See Holloway v.
United States, 960 F.2d 1348, 1358 (8th Cir. 1992).

       The district court did not abuse its discretion in concluding Davis's ineffective
assistance claims are all inadequate. See Delgado, 162 F.3d at 983. We thus affirm
the denial of Davis's § 2255 motion.

      A true copy.

             Attest:

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




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