Unpublished Disposition, 849 F.2d 1475 (9th Cir. 1988)

MEMORANDUM

Hui appeals from an order denying his motion brought pursuant to 28 U.S.C. § 2255 without a hearing. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

The briefs in this case are devoted largely to the question whether the "booby-traps" Hui placed in his marijuana garden would in fact have been found to be "destructive devices" within the meaning of 26 U.S.C. § 5845(f). These arguments miss the point. Hui is not entitled to relitigate his factual guilt or innocence pursuant to a collateral attack under section 2255; he may only attack the consensual character of his guilty plea. Mabry v. Johnson, 467 U.S. 504, 508-09 (1984) (Mabry). A voluntary and intelligent guilty plea constitutes a binding admission of each element of the offense with which the defendant is charged. United States v. Mathews, 833 F.2d 161, 163-65 (9th Cir. 1987); United States v. Benson, 579 F.2d 508, 509 (9th Cir. 1978). Thus, the only relevant grounds upon which Hui may attack his guilty plea are that it was induced by threats, promises or misrepresentations, Mabry, 467 U.S. at 509, or that his attorney's advice was so deficient that it rendered his plea involuntary or unintelligent. Hill v. Lockhart, 474 U.S. 52, 56 (1985) (Hill).

Hui also argues that the district court violated Fed. R. Crim. P. 11(c) by failing to advise him on the record of the nature of the charges and the consequences of his plea. These arguments are also irrelevant to the question before us. Violations of rule 11 are not reviewable on collateral attack. United States v. Timmreck, 441 U.S. 780, 784-85 (1979); United States v. Lopez-Beltran, 619 F.2d 19, 20 (9th Cir. 1979) (per curiam), cert. denied, 445 U.S. 9331 (1980). Under section 2255, the defendant must show that he was actually unaware of the consequences of his plea decision, and, if properly advised, would not have pleaded guilty. United States v. Rivera-Ramirez, 715 F.2d 453, 456 (9th Cir. 1983) (Rivera-Ramirez), cert. denied, 467 U.S. 1215 (1984).

The sole question before us, then, is whether Hui was entitled to an evidentiary hearing on the question whether his plea was involuntarily or unintelligently made. In his section 2255 motion, Hui contends that he did not understand that the government bore the burden of proving that his booby traps were "destructive devices." He also claims that he was never informed of the maximum sentence he could serve and that his attorney assured him that he would be released on parole within 36 months, regardless of the actual length of his sentence. Hui was entitled to an evidentiary hearing on these claims unless the allegations in his section 2255 motion were either unsubstantiated or refuted by the record. United States v. Quan, 789 F.2d 711, 715 (9th Cir.), cert. dismissed, 107 S. Ct. 16 (1986); see also Farrow v. United States, 580 F.2d 1339, 1360-62 & n. 37 (9th Cir. 1978) (en banc) (Farrow) (prisoner's argument that his counsel misled him insufficient to entitle him to an evidentiary hearing where prisoner failed to provide specific facts supporting his allegations and where prisoner's testimony during his plea hearing contradicted his allegations of error).

Hui's claim that he did not understand the nature of the charges against him is refuted by the record. This claim is premised on his assertion that his "booby traps" were not bomb-like devices capable of exploding and inflicting serious harm, and therefore were not covered by section 5845(f). He claims that if he had known that the government had to prove that his booby traps were "bomb-like" devices, he would not have pled guilty to the illegal firearms charge.

Although the district court did not read the relevant portions of section 5845(f) to Hui at the hearing, Hui testified that his attorney had explained the charges to him and had advised him of potential defenses. "These solemn declarations made in open court carry a strong presumption of validity." Rivera-Ramirez, 715 F.2d at 458. Moreover, the transcript of the hearing reveals that Hui was provided with information sufficient to enable him to understand the law in relation to the facts, which is all that is required to ensure that his plea was voluntary. Id. During the hearing, the government stated that Hui was charged with possessing illegal firearms in violation of section 5845(f). The government then described the facts it was prepared to prove in support of this charge; namely, that Hui had set "booby traps" that would "fire and explode" if triggered and which "posed a danger to human life." After the government completed its statement, the court asked Hui whether he denied any of the government's allegations. He responded "no." When asked whether he admitted the truth of the government's statements, he responded "yes." When asked whether he was guilty of the charge of knowing possession of armed traps not properly registered in violation of federal law, he stated "Guilty."

This record indicates that Hui was aware that he was being charged with possession of an illegal device capable of exploding and inflicting harm. Although Hui hedged when asked whether the booby traps were there to "protect the marijuana fields," at no point did Hui deny that the booby traps could explode and injure a human being, and at no point did he indicate that he misunderstood the nature of the charges against him. Indeed, he affirmatively agreed with the government's characterization of the devices as capable of exploding and inflicting harm, and stated that his attorney had explained the charges and defenses to him. In light of this sworn testimony, it does not appear that the district court erred in denying Hui's section 2255 motion without an evidentiary hearing on this issue.

Hui also claims that his plea was involuntary because no one explained to him that he could serve up to 10 years in prison for the offense of possessing illegal firearms and because his attorney assured him that he would be released on parole within 36 months. Hui's claim that he did not understand the sentence he would receive is refuted by the record.

Although the district court did not describe the maximum penalties to Hui during the hearing, the record establishes that Hui was aware of these penalties because they were contained in the plea agreement. The plea agreement was discussed during the plea hearing. The trial court asked Hui if the offer to plead guilty to the counts described in the agreement accorded with his understanding of what he wanted to do in that case. The trial judge also ascertained that Hui had discussed all the facts and circumstances in the three counts with his attorney. In addition, the trial court specifically asked Hui whether anyone had made promises to Hui regarding the sentence he would receive, and Hui replied "no." In similar circumstances, this court has held that no evidentiary hearing was required to determine the truth of a prisoner's allegations that his attorney misled him regarding the length of the sentence he would receive. Farrow, 580 F.2d at 1361-62. Both the plea agreement and the transcript of the plea hearing refute Hui's claim that he was unaware that he could be sentenced to a maximum of ten years in prison for this offense. No evidentiary hearing was required on this issue.

There is no evidence in the record, however, directly refuting Hui's claim that his attorney misled him regarding his parole eligibility. The possibility of parole was not mentioned either at the hearing or in the plea agreement. Thus, it appears that Hui's factual allegations regarding his attorney's alleged misrepresentations regarding his parole eligibility were not conclusively refuted by the record. See, e.g., Baumann v. United States, 692 F.2d 565, 580-81 (9th Cir. 1982) (nonfrivolous, specific allegations of attorney misconduct that allegedly occurred outside the courtroom cannot be rejected by reference to petition and record).

Nevertheless, even if his attorney erroneously predicted that Hui would be released within 36 months, the district court correctly dismissed Hui's motion without an evidentiary hearing. A defendant challenging the voluntariness of his plea in a section 2255 motion on the grounds of ineffective assistance of counsel must do more than allege that his attorney gave him erroneous advice. He must also allege that his attorney's ineffective performance had an adverse effect on the outcome of the plea process. Hill, 474 U.S. at 59. "In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that 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.

In the present case, Hui did not allege in his section 2255 motion that he would have rejected the plea bargain (pursuant to which 3 other charges against him carrying sentences totaling 25 years were dropped) if his attorney had correctly predicted the outcome of his parole hearing, nor did he allege special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding how to plead. Id. at 60. Absent an allegation of prejudice, Hui's motion failed to set forth facts, which, if true, would have entitled him to relief. Id.; United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985). In these circumstances, the district court did not err in denying Hui's section 2255 motion without an evidentiary hearing.

We have considered all other arguments raised by Hui and find them without merit.

AFFIRMED.