Unpublished Disposition, 878 F.2d 1439 (9th Cir. 1989)

MEMORANDUM^* 

Delgado, a federal prisoner, appeals from the district court's denial of his 28 U.S.C. § 2255 petition. Delgado's petition challenged his guilty plea on the grounds that (1) ineffective assistance of counsel caused him to lose his right to appeal an adverse pretrial ruling by failing to secure a conditional plea, and (2) his plea was coerced by a promise to dismiss charges against his codefendant. We have jurisdiction over Delgado's timely appeal pursuant to 28 U.S.C. §§ 1291, 2253. We affirm.

We review the denial of a section 2255 petition independently. Ineffectiveness of counsel is a mixed question of fact and law reviewed independently. United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988). We likewise review independently the determination of voluntariness of a plea. Id.

To successfully challenge a guilty plea for ineffectiveness of counsel, Delgado must demonstrate both "that [his] counsel's performance was deficient [and] that the deficient performance prejudiced [his] defense." Strickland v. Washington, 466 U.S. 668, 687 (1984) (Strickland) . " [A] guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not 'a reasonably competent attorney' and the advice was not 'within the range of competence demanded of attorneys in criminal cases.' " Id., quoting McMann v. Richardson, 397 U.S. 759, 770-71 (1970). "The longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' " Hill v. Lockhart, 474 U.S. 52, 56 (1985), quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. Delgado "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id., quoting Michael v. Louisiana, 350 U.S. 91, 101 (1955).

Delgado's allegation of ineffective assistance of counsel because of his attorney's failure to secure a conditional plea does not satisfy the first prong of the Strickland test. By pleading guilty, Delgado surrendered the right to appeal the denial of his suppression motion. This was a strategic decision made with the advice of counsel. Delgado has not shown, nor do we conclude, that this advice was objectively unreasonable.

" [A] court hearing an ineffectiveness claim must consider the totality of the [circumstances]." Strickland, 466 U.S. at 695. In the district court, Delgado's attorney testified that he "kept on saying to [Delgado] 'are you sure you want to do this?' " See id. at 691 (" [t]he reasonableness of a counsel's actions may be determined or substantially influenced by the defendant's own statements"). At the plea proceedings, Delgado's attorney testified that

[the dismissal of Delgado's codefendant] was one of the considerations for Mr. Delgado pleading guilty in the totality of the circumstances, just as the motion to suppress evidence that we had filed and lost in this case and which I considered an excellent appealable issue was a consideration for Mr. Delgado to go to trial. All of these circumstances taken together, Mr. Delgado decided to enter a plea of guilty to Count II and dismiss Count I.

He further explained that although he disagreed with the ruling on the suppression motion, " [w]e are living with that ruling." Delgado's attorney clearly considered the effect of losing the right to appeal in advising Delgado to accept the plea agreement. See United States v. Claiborne, 870 F.2d 1463, 1468 (9th Cir. 1989) ("a reviewing court is not free to engage in after-the-fact second-guessing of strategic decisions made by defense counsel").

Delgado also argues that he was deprived of effective assistance of counsel because he was not informed that he was losing his right to appeal the suppression motion by pleading guilty. At the plea proceeding, Delgado testified under oath that he understood his attorney's statements and voluntarily chose to accept the plea bargain. It is difficult to accept Delgado's argument after reading the transcript of the change of plea hearing as a whole. We place great weight on Delgado's statements given under oath--certainly more than any subsequent contradictory statements. See Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986) (Chizen) .

But even if we accept Delgado's dubious claim that he did not understand that he was losing the right to appeal, Delgado cites no authority for the proposition that his attorney must advise him that a plea bargain causes him to lose the right to appeal and has therefore failed to show that his counsel's performance was deficient as required under Strickland. Delgado relies on Marrow v. United States, 772 F.2d 525 (9th Cir. 1985) (Marrow), and Miller v. McCarthy, 607 F.2d 854 (9th Cir. 1979 (1979) (Miller), which have no bearing on the present case. Marrow stands for the proposition that counsel may have a duty to inform his client of the right to appeal a conviction after a plea of guilty on the grounds of an invalid plea or jurisdiction. Marrow, 772 F.2d at 529. Miller holds that a defendant must be informed of the potential penalty when pleading guilty. Miller, 607 F.2d at 857.

Delgado's second contention is that his guilty plea was involuntary because it was coerced by a promise to dismiss charges against his codefendant. Although "third party threats and promises 'might pose a great danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider,' " United States v. Castello, 724 F.2d 813, 815 (9th Cir. 1984), quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8 (1978), third party threats or promises are not coercive per se. Id. Rather, the trial judge "should make a more careful examination of the voluntariness of a plea when it is induced by such threats or promises." Id.

In the present case, the judge carefully questioned Delgado, Delgado's attorney, and the government attorney to confirm that the plea agreement did not include any condition regarding the dismissal of Delgado's codefendant. Under oath, Delgado testified that he was in fact guilty, that he "had a kilo of cocaine" which he planned "to pass [ ] on to others," and that he understood and voluntarily accepted the ramifications of his plea. See Chizen, 809 F.2d at 562 (" [i]n assessing the voluntariness of the plea, statements made by a criminal defendant contemporaneously with his plea should be accorded great weight ... [and] carry a strong presumption of verity").

The district court did not err in holding that Delgado voluntarily entered his guilty plea and was not denied effective assistance of counsel.

AFFIRMED.