Unpublished Disposition, 923 F.2d 861 (9th Cir. 1991)

MEMORANDUM^** 

Eddie Edwards, a federal prisoner, appeals the district court's denial of his 28 U.S.C. § 2255 motion. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990), and affirm.

In 1987, a jury convicted Edwards of one count of rape. Because it was his second offense, the district court sentenced him to 22 years of imprisonment. In his section 2255 motion, Edwards sought relief on the ground that his attorney failed to advise him of a three-year plea offer allegedly made by the Assistant United States Attorney at an early stage of the trial. The district court denied the motion because it found that the Assistant U.S. Attorney did not make an offer of a three-year sentence during plea negotiations.

On appeal, counsel for Edwards filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), which identifies as a possible issue for review whether the district court's factual finding that the government did not make a three-year plea offer is clearly erroneous. See Gano v. United States, 705 F.2d 1136, 1137 (9th Cir. 1983) (district court's findings of fact cannot be set aside unless clearly erroneous).

[W]hen a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.

Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).

Here, the district court held an evidentiary hearing at which both the Assistant U.S. Attorney and Edward's trial counsel testified. The prosecutor testified that he did not offer a three-year sentence; defense counsel testified that the prosecutor did make a three-year offer, but he forgot about the offer and never conveyed it to Edwards. After considering the credibility of each witness's version of the plea negotiations, the district court decided to credit the testimony of the Assistant U.S. Attorney over that of defense counsel. Accordingly, the record presents no basis on which this court could find the district court's decision clearly erroneous. See id.

AFFIRMED.