Unpublished Disposition, 923 F.2d 864 (9th Cir. 1989)

MEMORANDUM^** 

Steven Paul Valo't was arrested for violating 21 U.S.C. § 955a(c).¹  He pleaded guilty and on July 13, 1987, was sentenced to seven years imprisonment. On April 5, 1989, Valo't filed the present action pursuant to 28 U.S.C. § 2255. He alleged that his arrest was executed in violation of the Fourth Amendment, that his guilty plea was the result of coercion and misinformation on the part of his counsel and the prosecution, and that his sentence did not reflect his cooperation. The district court denied the motion and entered judgment in favor of the government on June 13, 1989. Valo't appeals this judgment, but does not raise the Fourth Amendment issue. We affirm.

* VOLUNTARINESS

Valo't claims that promises were made, "by the government to appellants [sic ] own counsel and from DEA agents to appellant," that the government would recommend a sentence of 6 to 24 months. He argues that these promises made his guilty plea involuntary.

" [A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by ... misrepresentation (including unfulfilled or unfulfillable promises)." Brady v. United States, 397 U.S. 742, 755 (1970) (citations omitted). We have held that an evidentiary hearing is required where a section 2255 motion was made based on alleged occurrences outside the record. Shah v. United States, 878 F.2d 1156, 1158 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 195 (1989). However, "no hearing is required if the allegations, viewed against the record, either fail to state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." Id. (quotations omitted). See also 28 U.S.C. § 2255 (1988) (A hearing must be granted " [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.").

In assessing the voluntariness of a plea, we accord great weight to statements made by a criminal defendant contemporaneously with his plea. Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986).

" [T]he representations of the defendant, his lawyer, and the prosecutor at [the original plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible."

Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).

At the time of his sentencing, Valo't stated that there had been no promise that his guilty plea would have any result other than that the court might consider his cooperation with the government in reaching its sentencing decision. Additionally, both the prosecutor and the defense counsel have sworn that there was never any promise that the prosecution would recommend any specific sentence. Valo't presents no evidence to support his contention that he had a different understanding. Although Valo't's allegations would justify relief if they were true, dismissal is proper where the allegations "amount [ ] to no more than a bare contradiction of statements petitioner made when she [or he] pled guilty." United States v. Williams, 536 F.2d 247, 250 (8th Cir. 1976) (citation omitted).

Valo't was sentenced 21 months before he brought this motion. Despite the fact that he has contested his sentence twice prior to this motion, he has not previously mentioned this alleged promise. This fact "refutes his present allegations," regarding both the voluntariness of his plea and the effectiveness of his counsel. See Watts v. United States, 841 F.2d 275, 278 (9th Cir. 1988).

II

INEFFECTIVE ASSISTANCE OF COUNSEL

In his memorandum of points and authorities, Valo't claimed that his counsel led him to believe that his cooperation would cause the prosecutor to recommend a sentence of 6 to 24 months. "In challenging a guilty plea for ineffective assistance of counsel, a defendant must demonstrate 'both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.' " Shah, 878 F.2d at 1158 (citation omitted). Bare allegations unsupported by any facts in the record are insufficient to set aside pleas of guilty. United States v. Sutton, 794 F.2d 1415, 1422 (9th Cir. 1986).

Valo't's counsel swore that he told Valo't the prosecution would seek a sentence of at least two years and that the court could sentence him to as many as 30 years. This affidavit is supported by Valo't's statement at sentencing that no promises were made. Valo't presents no contrary evidence.

III

VIOLATION OF THE PLEA AGREEMENT

Valo't argues that the plea agreement was violated because the prosecution did not keep its alleged promise that it would recommend a shorter sentence. As described in the preceding sections, Valo't presents no evidence to refute the evidence that there was no such promise. The district court found that Valo't's cooperation was taken into account in the determination of his sentence. Valo't presents no evidence to the contrary.

AFFIRMED.