Unpublished Disposition, 872 F.2d 430 (9th Cir. 1989)

MEMORANDUM^** 

Petitioner Phillip Snyder appeals the denial of his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. First, Snyder alleges that he suffered intense pain due to dental problems, which prevented him from comprehending the proceeding at which he pled guilty. As a result, he argues, he did not enter a knowing and voluntary plea of guilty. He also states that he was coerced by his attorney, who allegedly informed him that he would be denied medical treatment until he pleaded guilty. Second, Snyder asserts that he was denied effective assistance of counsel because of his attorney's failure to call a witness whom Snyder believed would exculpate him. The district court denied Snyder's motion, finding his contentions to be without merit.

STANDARD OF REVIEW

The district court's decision to deny a petition to vacate, set aside, or correct a sentence is reviewed de novo. United States v. Ouan, 789 F.2d 711 (9th Cir. 1986).

DISCUSSION

Snyder alleges that he was in such extreme pain because of an impacted tooth that he was unable to comprehend the nature of the proceedings in which he pleaded guilty. However, the record of the proceedings of the district court conclusively demonstrates his understanding of the guilty plea, and his dental records suggest that he has greatly exaggerated his infirmity.

Snyder also asserts that his attorney forced him to plead guilty, refusing to go to trial and advising him that until he pleaded guilty he would be unable to receive treatment for his impacted tooth. This contention is refuted both by the attorney, who denied having made any such statements, and by Snyder's own statements under oath attesting to the voluntariness of his plea. A court is entitled to credit the defendant's testimony under oath at the proceeding and reject subsequent statements to the contrary. United States v. Rivera-Ramirez, 715 F.2d 453 (9th Cir. 1983). Given the lack of evidence of coercion offered by Snyder and the district court's finding of voluntariness, we reject this contention.

Snyder contends that he was provided ineffective assistance of counsel. To prove ineffective assistance of counsel, Snyder must demonstrate that the representation he received fell below an objective standard of reasonableness, and that there is a reasonable probability that in the absence of counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); LePage v. Idaho, 851 F.2d 251, 257 (9th Cir. 1988). The same standard is applicable to challenges of guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 57 (1985).

First, Snyder asserts that his attorney's decision not to call a particular witness constituted ineffective assistance of counsel. He also contends that his attorney's failure to advise him of the attorney's dual role of potential impeachment witness and attorney of record violated Rule 2-111(A) (4) of the Rules of Professional Conduct of the State of California.¹ 

To prove ineffective assistance of counsel, "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Strickland, 466 U.S. at 689. Snyder's attorney determined, after speaking with the potential witness, that the witness' testimony would not have exonerated Snyder. Snyder has offered no evidence showing that his attorney's decision not to call this witness was unsound; he merely asserts that the outcome of the proceeding would have been different had the attorney decided to call the witness to testify and then taken the stand to impeach his testimony.

There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The evidence demonstrates that the attorney's decision not to call a witness who was not material to the defense was a reasonable trial tactic. This precludes a finding of a Rule 2-111(A) (4) violation. Snyder has proved neither ineffective assistance nor a reasonable likelihood that his attorney's representation prejudiced him.

Second, Snyder asserts that his attorney's alleged attempts to make him enter a plea of guilty constitute ineffective assistance of counsel. This assertion is unsupported by the evidence and is refuted by the testimony of Snyder and his attorney.

AFFIRMED.