The opinion
UNPUBLISHED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Dismissed by unpublished per curiam opinion.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, Rich-
mond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit.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 Sep-
tember 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 ineli-
gible 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. Find-
ing 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 com-
mon act, transaction or scheme shall not be eligible for parole." Va.
Code Ann. § 53.1-151B1. According to an unrefuted affidavit submit-
ted 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 rob-
bery 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 parole-
ineligible.
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 con-
sequence of his guilty plea in that jurisdiction.
To prevail on a claim of ineffective assistance of counsel in con-
nection 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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