Unpublished Disposition, 930 F.2d 30 (9th Cir. 1986)

MEMORANDUM^* 

Willie Hampton, a federal prisoner, appeals the district court's order denying his 28 U.S.C. § 2255 motion to vacate his sentence. Pursuant to an agreement, he pled guilty to possession of cocaine with intent to distribute. In accordance with the plea agreement, Hampton was sentenced by District Judge Burke in December, 1986, to ten years in prison. Hampton complains that his plea was involuntary as it was induced by false promises. He also contends that his counsel was ineffective because Hampton was not apprised of the sentence he realistically faced. Lastly, he now disputes several of the basic facts underlying this case.

FACTUAL AND PROCEDURAL BACKGROUND

On April 23, 1986, Oakland police officers executed a search warrant at 4027 Fullington Street, a residence purchased by Hampton and permanently occupied by his son and codefendant, James Rayford. On this day, the officers found Hampton's vehicle in the driveway. In its trunk, they found ten ounces of cocaine wrapped in a plastic bag. Hampton's latent fingerprints were found on the scotch tape that sealed the bag.

Hampton was found inside the garage of the house, hiding under a blanket, on a shelf below the rafters. Within his reach were eight pounds of cocaine and a .22 caliber revolver. Hampton was arrested. His fingerprints were found on several of the packages of cocaine. The officers also found in the garage 800 units of LSD and fake identification belonging to Hampton. On the same day, officers found over $250,000 in cash and packages containing cocaine residue at Hampton's principal place of residence on High Street in Oakland.

An agreement was reached that if Hampton pled guilty to one count of possession with intent to distribute, the Assistant U.S. Attorney would recommend no more than ten years. In a declaration to the district court, defense counsel Nathan Cohn stated that these plea negotiations were pursuant to the interests of the defendant: " [T]he defendant made it clear that he [would] rather not go to trial and that he wanted to dispose of the case with the best deal possible." Cohn explained that he informed Hampton of the ramifications of his guilty plea and the possible maximum sentence he could receive.

In court, the prosecutor stated the terms of the plea agreement in the presence of the defendant. Cohn agreed with the terms and explained that he had discussed these terms with his client "in great length." Judge Burke asked Hampton if this plea was voluntary and whether he believed in his own guilt. Further, the judge questioned Hampton if he was satisfied with the performance of his defense counsel. Hampton responded affirmatively to those questions. Judge Burke concluded that "the plea had been entered on a free and voluntary basis."

Hampton's appellate counsel now contends that despite police reports to the contrary, Hampton was not discovered hiding under a blanket near eight pounds of cocaine in the garage on Fullington Street. Instead, defense counsel maintains that Hampton was not in the Oakland residence at the time of the police raid but was, in fact, walking up the driveway after the police had conducted their search. The police report, however, directly contradicts this new version. Counsel suggests that Hampton accepted the police version of events due to coercion and overreaching on the part of his defense counsel Nathan Cohn.

Additionally, Hampton contends that he was coerced into accepting the plea by Cohn. He maintains that his counsel advised him that he could face up to seventy-five years on the gun count if he did not take the plea.

STANDARD OF REVIEW

A district court's denial of habeas corpus petition is reviewed de novo. Shah v. United States, 878 F.2d 1156, 1159 (9th Cir. 1989). To the extent it is necessary to review findings of fact, the clearly erroneous standard applies. Norris v. Risley 878 F.2d 1178, 1180 (9th Cir. 1989).

A guilty plea will not be set aside after sentencing unless a manifest injustice would result. U.S. v. Hoyos, 892 F.2d 1387 (9th Cir. 1989). The voluntariness of a guilty plea, however, is subject to de novo review. U.S. v. Zweber, 913 F.2d 705, 710 (9th Cir. 1990). The denial of an evidentiary hearing on a Section 2255 motion will not be disturbed on appeal absent abuse of discretion. Shah v. United States, 878 F.2d 1156, 1159 (9th Cir. 1989).

DISCUSSION

1. Ineffective assistance of counsel.

As always, the appropriate starting point of ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668 (1984). A petitioner must show that his attorney fell below the skill and performance of a reasonably competent attorney and that as a result, the petitioner suffered prejudice. Hampton makes several allegations that Cohn was unprepared, gave erroneous advice, and frankly, coerced the defendant into entering a guilty plea. If, however, one looks at the vast array of evidence compounded against Hampton, encouraging him to enter a guilty plea made good sense. Even if Hampton was not hiding in the garage when the police found him as he now contends, over $200,000 in cash, drug residue and paraphernalia were found in his home on High Street. A large amount of cocaine was found in the trunk of his car in the driveway of the Fullington address. At sentencing, Judge Burke noted, " [o]n the facts of the case, I think that the normal sentence to be expected would have been just twice the amount of the top penalty agreed upon by the government. I think that the entry of a plea of guilty in this case saved the defendant ten years." We find that Cohn provided competent representation.

Even if counsel is found to have performed inadequately, his errors must prejudice the defendant. Prejudice in the context of a habeas corpus attack on a guilty plea requires that the defendant shows that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty, but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986). In Iaea, this court found special circumstances that the defendant may have placed "particular reliance on erroneous advice in deciding whether or not to plead guilty." Iaea, 800 F.2d at 865. Iaea's brother threatened to withdraw bail if he did not plead guilty and his counsel threatened to withdraw from the case. Furthermore, on his guilty plea form, the defendant crossed out the words "I believe myself to be guilty" and replaced them with "I do not wish to go to trial." Id. at 863.

Here, there is only Hampton's current claim that Cohn suggested the possibility of a seventy-five-year sentence. Cohn swears in his declaration to the court that he does not recall giving such advice. There was ample evidence on the record to support a finding that Hampton would have pled guilty based on the favorable agreement between counsel and the prosecutor. Hampton's claims, therefore, fail both prongs of the Strickland test.

2. Voluntariness of the plea.

A conviction that is based upon a plea that is not voluntary and intelligent is invalid. Boykin v. Alabama, 395 U.S. 238, 242 (1969). The record of plea proceeding must reflect that the defendant voluntarily waived three rights: the right to a jury trial, the right to confront one's accusers and the privilege against compulsory self-incrimination. Id. at 243. Judge Burke discussed with Hampton his decision to plead guilty. He questioned Hampton as to the voluntariness of the plea and if he in fact believed he was guilty. The judge continued by asking Hampton if he understood the rights he would be waiving by choosing to plead guilty and not going to trial.

Secondly, before a trial court accepts a guilty plea it must inform a defendant of "the maximum possible penalty provided by law including the effect of any special parole or supervised release term." Fed. R. Crim. P. 11(c) (1). Again, Judge Burke advised the defendant of the maximum penalty. Judge Burke sufficiently determined that Hampton had pled guilty of his own accord.

3. Hampton was advised of the plea agreement's effect.

Federal Rule of Criminal Procedure 11 provides that plea agreements must be disclosed in open court and the court must inform the defendant that the court is not bound by such a recommendation.

Hampton suggests that the terms of the plea agreement were that he would not receive more than five years. The record does not reflect this. Judge Burke discussed the plea arrangement with the defendant and consistently referenced a ten-year sentence. Hampton did not object.

Hampton did attempt to withdraw his plea at one point in the sentencing. It was not, however, in the context of the prison term. The Assistant U.S. Attorney was cataloging the property recovered upon which a fine could be based. Hampton interrupted, denied ownership, and attempted to withdraw his plea. The judge accepted Hampton's objections and did not impose a fine.

There is no evidence on the record of any five-year plea agreement. The only suggestion of less than ten years was the prosecutor's reservation of the right to recommend less than that amount of time. Cohn was emphatic that he did not tell Hampton there would be a five-year recommendation. On habeas review, the district court determined that there was insufficient reason to suspect that there had been such an agreement. We agree.

4. The presentence report.

Hampton signed the presentence report but he now claims that he did so under duress and at the sentencing hearing itself. He makes reference to the report, however, in his statements to the court. Further, Nathan Cohn's declaration states that if Hampton signed an acknowledgement, that Hampton read it and they discussed it.

Hampton suggests that this court should follow the approach found in U.S. v. Rone, 743 F.2d 1169 (7th Cir. 1984). The Seventh Circuit held that Rule 32 requires the sentencing court to inquire of the defendant directly whether (1) defendant has had the opportunity to read the presentence report; (2) counsel and defendant have discussed the report; and (3) defendant wishes to challenge any facts in the report. Rone, however, was rejected by this Circuit in U.S. v. Lewis, 880 F.2d 243 (9th Cir. 1989):

In our view the plain language of Rule 32(a) (1) (A) requires that the court determine whether or not the defendant and his counsel have had the opportunity to read and discuss the report. The rule does not require the court to address the defendant directly concerning his knowledge of the presentence report. We will not impose such a requirement where Congress apparently has chosen to abstain from doing so.

Id. at 245 (citations omitted).

The requirements of Rule 32(a) (1) (A) are met when the sentencing judge reasonably relies on evidence indicating that a defendant has read the presentence report and discussed it with counsel. This is particularly so in this case where the sentencing judge made clear that he was basing his sentence more upon the plea agreement than the report or anything else.¹ 

5. The evidentiary hearing.

Hampton argues that he deserves an evidentiary hearing because his claims involve events outside the scope of the court record. Section 2255 requires that " [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing ... [to] determine the issues to make findings of fact and conclusions of law." 28 U.S.C. § 2255 (1982); Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988).

Hampton's contentions, when viewed against the record, appear disingenuous. Section 2255 requires only that the judge give the prisoner's claim "careful consideration and plenary processing, including full opportunity for presentation of the relevant facts." Watts, 841 F.2d at 277, (quoting Blackledge v. Allison, 431 U.S. 63, 82-83 (1977)). This court has determined that where the issue of credibility can be conclusively decided on the basis of the documentary testimony and evidence in the record no evidentiary hearing is required. Watts at 277. Here, the district court made such a determination.

As in Watts, Hampton first alleged a serious breach of a plea agreement several months after the sentence was handed down and other appearances in court had come and gone. Hampton filed a Rule 35 motion in 1987 and a pro se habeas writ in 1988, never raising the breach. The court in Watts found it incredible that a defendant could let considerable time pass, appear in court with other motions, and never once bring up the breach of the agreement. Id. at 277-78.

We view Hampton's allegations with the same misgivings. The denial of an evidentiary hearing was proper because the district court could determine from the record that Hampton's claims were without merit.

CONCLUSION

We find no merit in any of Willie Hampton's contentions. The district court's denial of his habeas corpus petition is AFFIRMED.