Unpublished Disposition, 875 F.2d 319 (9th Cir. 1988)

MEMORANDUM^*

William J. Walker appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion. In 1984, Walker pled guilty to a charge of bank robbery. In his Sec. 2255 petition, Walker alleged that the guilty plea was not knowing and voluntary. The district court dismissed Walker's petition sua sponte. Walker filed a motion for leave to amend his petition and a motion for reconsideration. The district court denied both motions. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

FACTUAL BACKGROUND

In June 1983, the United States Attorney's office filed an information charging Walker with two counts of savings and loan robbery. The charges arose from two separate robberies of the same savings and loan. Count I of the information charged Walker with armed robbery in violation of 18 U.S.C. § 2113(a) and (d). Count II of the information charged him with robbery, in violation of 18 U.S.C. § 2113(a).

On August 9, 1983, Walker pled guilty to Count II before District Court Judge Edward Price. Before Walker's plea was accepted, Walker was questioned by the judge. He stated that he had not been made any promises other than the promise to dismiss Count I. Walker stated that he understood the maximum sentence which could be imposed was twenty years and a $5,000 fine. On September 26, 1983, he was sentenced to twenty years' imprisonment.

On October 1, 1987, Walker filed a petition for a writ of habeas corpus alleging that his plea had not been knowing and voluntary because his defense attorney, Steven Noxon, had told him that he would receive a twelve to fifteen year sentence if he pled guilty, when in fact he was sentenced to twenty years. The district court summarily dismissed Walker's petition.

On January 13, 1988, Walker filed a proposed amendment to his petition, made a request for discovery, and filed a motion for reconsideration. In the amendment to his petition, Walker claimed that Noxon's "misrepresentation" about the sentence constituted ineffective assistance of counsel. He also claimed ineffective assistance because Noxon failed to make the government prove a jurisdictional element of the crime.

In his motion for reconsideration, Walker claimed that Noxon erred in not investigating the indictment more fully before having Walker plead guilty. Walker claimed Noxon's errors had been caused by the fact that the attorney was facing criminal charges for cocaine use.

On January 28, 1988, the district court denied Walker's motion for reconsideration and motion for leave to amend. Walker filed this timely appeal.

STANDARD OF REVIEW

This court reviews the district court's decision to deny a writ of habeas corpus de novo. Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir. 1987). If the petition was denied without a hearing, this court performs a two-part inquiry. First, the court must determine whether the petitioner has alleged facts which, if proven, would entitle him to relief. If so, the court must decide whether an evidentiary hearing is necessary to determine the truth of the allegations. Id.

The voluntariness of a guilty plea is a question of law subject to de novo review. Marshall v. Lonberger, 459 U.S. 422, 431 (1983); Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986). The effectiveness of counsel is a mixed question of law and fact which is reviewed de novo. Reiger v. Christensen, 789 F.2d 1425, 1427-8 (9th Cir. 1986); Iaea, 800 F.2d at 864.

DISCUSSION

In his petition, Walker alleged that Noxon promised him that he would receive twelve to fifteen years if he pled guilty. Walker furnished two affidavits from witnesses stating that they had heard Noxon tell Walker he would receive twelve to fifteen years. Walker did not allege that Noxon intimated that he had reached any agreement with the prosecutor or the judge.

These allegations are insufficient to warrant an evidentiary hearing. To be entitled to an evidentiary hearing, a defendant must make allegations which, if proven, would entitle him to relief. See Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir. 1987). An erroneous prediction by a defense attorney does not entitle the defendant to challenge a guilty plea. See Chizen v. Hunter, 809 F.2d 560, 561 (9th Cir. 1986). Therefore, an allegation that the defendant's attorney "led the defendant to believe" a certain sentence would be set is insufficient to warrant an evidentiary hearing absent an allegation that the defendant was misled that a bargain had been struck. United States v. Edmo, 456 F.2d 240, 241 (9th Cir. 1972). See also United States v. Crank, 438 F.2d 635 (9th Cir. 1971) (no evidentiary hearing required when defense attorney stated what sentence he thought defendant would get if defendant pled guilty but attorney did not represent that he had reached agreement with the prosecutor or the judge); Blackledge v. Allison, 431 U.S. 63, 71 (1977) (defendant entitled to evidentiary hearing when he alleges more than a mere prediction by his attorney).

II. The ineffective assistance of counsel claim

In his motion to amend his petition and his motion for reconsideration, Walker raised an issue of ineffective assistance of counsel. Walker claimed that, in addition to misstating the sentence Walker would receive, Noxon had failed to "investigate the indictment" and had failed to require the prosecutor to prove that a federal crime had been committed before recommending to Walker that he plead guilty. Walker claimed these errors were due to Noxon's anxiety over criminal charges pending against Noxon for cocaine use.

Walker was not deprived of effective assistance of counsel by Noxon's erroneous prediction of his sentence. Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986). Nor was Noxon's performance deficient because of his "failure to investigate the indictment", because there was no indictment to investigate. Walker waived his right to be charged by an indictment and was instead charged by a written information. Walker can not show that he was prejudiced by Noxon's failure to require the government to prove that the banks were federally insured at the time of the crime, because the banks were federally insured. Thus, Walker has failed to state a claim for ineffective assistance of counsel. Since Walker has shown no deficient performance by Noxon, the alleged reason for the deficiency, the cocaine charges, is irrelevant.

III. Walker's claim that the court lacked jurisdiction to accept his plea

Walker also contends that it was error for the trial court to accept his plea because the government failed to prove that a federal offense was committed. The government never submitted proof that the savings and loan which was robbed had been insured by the FSLIC. This contention is meritless.

This court has held that in cases involving a guilty plea, the government is not required to prove insurance because "a plea of guilty admits to all averments of fact in the indictment." United States v. Davis, 452 F.2d 577, PAGE (9th Cir. 1971). Davis has been interpreted to mean that a guilty plea admits "even those factual allegations in the indictment that form the predicate for federal jurisdiction." United States v. Matthews, 833 F.2d 161, 164 (9th Cir. 1987). Therefore, under Davis, Walker's plea serves as an admission that the savings and loan was federally insured.

IV. Walker's claims regarding the composition of the grand jury

Walker sought discovery regarding the composition of the grand jury to support his claims that the grand jury was improperly chosen and the indictment was not factually founded. Walker's request for discovery was properly denied. Walker waived his right to be charged by an indictment. He does not challenge the validity of this waiver. Therefore, the composition of the grand jury is irrelevant to his case, as is his charge that the prosecution failed to present sufficient evidence to get a valid indictment.

CONCLUSION

Walker's petition stated no allegations which, if proven, would entitle him to relief. Therefore, the district court's decision to deny the motion without an evidentiary hearing was proper.

AFFIRMED.