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that this opinion should not be published and is not precedent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

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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
2

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
3

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.