UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL DWAYNE BROWN,

Plaintiff-Appellant,

v. No. 98-7726

RONALD ANGELONE,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-96-972-AM)

Submitted: March 20, 2000

Decided: March 30, 2000

Before WILLIAMS, TRAXLER, and KING, Circuit Judges.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Michael Dwayne Brown, Appellant Pro Se. Pamela Anne Rumpz,

OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Michael Dwayne Brown appeals the district court's order denying

his 28 U.S.C.A. § 2254 (West 1994 & Supp. 1999) petition. On September 21, 1992, Brown pleaded guilty and was convicted in Stafford

County, Virginia of robbery and use of a firearm in the commission

of a felony. In his § 2254 petition, Brown asserted that counsel was

ineffective because he failed to inform Brown that he would be ineligible for parole under Virginia's "three strikes" rule if he pleaded

guilty. See Va. Code Ann. § 53.1-151B1 (Michie 1998). Furthermore,

Brown claimed that his guilty plea was involuntary because he was

not advised that parole ineligibility would result from his plea. Finding Brown's arguments to be without merit, we dismiss the appeal.

The statute provides that "[a]ny person convicted of three separate

felony offenses of . . . (iii) robbery by the presenting of firearms or

other deadly weapon . . . when such offenses were not part of a common act, transaction or scheme shall not be eligible for parole." Va.

Code Ann. § 53.1-151B1. According to an unrefuted affidavit submitted by a Virginia Department of Corrections official, Brown had

numerous previous convictions for armed robbery. On October 18,

1991, he was convicted in Spotsylvania County, Virginia of two

counts of robbery, one count of attempted robbery, and one count of

use of a firearm in the commission of a robbery. These offenses

counted as one strike under the statute. On October 29, 1991, Brown

was convicted in Mecklenburg County, Virginia of two counts of robbery and one count of use of a firearm in the commission of a felony.

According to the affidavit, these convictions resulted in two more

strikes. On February 6, 1992, Brown was convicted in Chesterfield

County, Virginia, of two counts of robbery and two counts of use of

a firearm in the commission of a felony. These convictions added two

more strikes. Therefore, by the time Brown pleaded guilty to the

charges in Stafford County, he already was statutorily paroleineligible.

A plea of guilty is involuntary if the defendant is not advised that

parole ineligibility will result as a direct consequence of his plea. See

Bell v. North Carolina, 576 F.2d 564, 565 (4th Cir. 1978). Here, how-

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ever, because Brown was parole-ineligible before he pleaded guilty to

the Stafford County charges, parole ineligibility was not a direct consequence of his guilty plea in that jurisdiction.

To prevail on a claim of ineffective assistance of counsel in connection with a guilty plea, the petitioner must first show that counsel's

performance was objectively unreasonable. Second, the petitioner

must demonstrate prejudice flowing from counsel's error. See Hill v.

Lockhart, 474 U.S. 52, 57-59 (1985). To establish prejudice, he must

show that, but for counsel's error, "there is a reasonable probability

that . . . he would not have pleaded guilty and would have insisted on

going to trial." Id. at 59. In this case, Brown is unable to satisfy the

prejudice prong of the Hill test. He was already parole-ineligible

when he pleaded guilty in Stafford County; therefore, any failure to

inform him of the three strikes rule or any other misadvice concerning

parole eligibility could not have influenced his decision to plead

guilty.

We therefore deny a certificate of appealability and dismiss the

appeal. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court

and argument would not aid the decisional process.

DISMISSED

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