Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1991)

MEMORANDUM^** 

Jose Quintero, a federal prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2255 motion to vacate his sentence. We have jurisdiction pursuant to 28 U.S.C. §§ 2255 and 1291. We review de novo the district court's denial of a section 2255 motion. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989) (per curiam). We review for an abuse of discretion the district court's decision not to hold an evidentiary hearing. Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990). We affirm.

In 1989, Quintero pleaded guilty to Count II of an indictment charging him with distribution of cocaine in violation of 21 U.S.C. §§ 841(a) (1) and (b) (1) (B), and Count IV, charging him with carrying a firearm during the commission of a drug trafficking offense in violation of 18 U.S.C. § 924(c) (1). He was sentenced to 6 years on Count II and 5 years on Count IV, the sentences to run consecutively.

Quintero filed his section 2255 motion raising four grounds for relief: (1) that his guilty plea was not knowing or voluntary because his attorney told him he would not be charged with possessing a firearm; (2) his conviction was obtained by a coerced confession because Quintero's attorney told him he would be sentenced to a maximum of three to six years; (3) his conviction was obtained in violation of his right against self-incrimination because his attorney told him nothing would happen if Quintero just said he was close to the firearm; and (4) the prosecution failed to disclose favorable evidence to the defendant. The district court dismissed Quintero's motion without holding an evidentiary hearing.

On appeal, Quintero claims it was error for the district court to dismiss his motion without (1) holding an evidentiary hearing, (2) reading the transcript of the proceedings, (3) allowing him an opportunity to reply, and (4) allowing him to amend his motion before dismissing it.

At his Rule 11 plea hearing, a translator was present and interpreted the entire proceeding for Quintero. Quintero admitted he had read and signed the plea bargain agreement. He also admitted that he had discussed the agreement with his attorney and understood its contents. Quintero agreed that he wished to plead guilty to Counts II and IV of the indictment, and the court explained the rights he was giving up by pleading guilty. Quintero stated he understood that on the two counts, the maximum penalty was 40 years and a fine of up to $2,000,000, and that each count carried a mandatory minimum of five years to run consecutively. Quintero also stated that no promises outside the plea agreement had been made and no threats were made to induce him to plead guilty. Finally, the court read the substance of Counts II and IV to Quintero, and he admitted his guilt on each count.¹ 

The record in this case establishes that Quintero's guilty plea was made voluntarily and intelligently as required by Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). At the plea hearing, Quintero was made aware of the nature and elements of the charges against him and the possible punishment he faced. See id. Quintero was aware he was pleading guilty to possessing a firearm and admitted to the judge that he was in fact carrying the weapon. The favorable evidence Quintero alleges the prosecution did not disclose is that they knew the firearm was bought and registered to his co-defendant. This evidence, however, was available to Quintero, as well as the prosecution, and could have been discovered by Quintero's attorney. In addition, Quintero was convicted of possession of the firearm and the legal owner of the gun is irrelevant to this charge.

Section 2255 requires the district court to hold an evidentiary hearing " [u]nless the motions and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; Rule 4, Rules Governing Section 2255 Proceedings; United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir. 1988). A judge may supplement the record with his "recollection of the events at issue" and then summarily dismiss a section 2255 motion. United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989) (quoting Blackledge v. Allison, 431 U.S. 63, 74 n. 4 (1977)) (citation omitted).

Here, Quintero's allegations are not based on facts outside the record and the district court was able to evaluate his claims on the basis of the record before it.²  See Espinoza, 866 F.2d at 1069. Therefore, the district court did not abuse its discretion in failing to hold an evidentiary hearing.

Moreover, nothing indicates that the district court did not review the record in the proceedings in making its decision. Judge Callister's order dismissing the motion states that she has reviewed the "entire matter." There was no error in the judge's review.

Finally, there was no error in failing to give Quintero an opportunity to reply after the government filed their response to his petition. Nor was it error to fail to give Quintero a chance to amend his motion. Quintero's motion, the government's response, and the record of proceedings, conclusively showed that he was entitled to no relief. Furthermore, Quintero did not file a motion with the district court to amend his section 2255 motion. Therefore, the judgment of the district court is

AFFIRMED.