Unpublished Disposition, 936 F.2d 581 (9th Cir. 1991)

MEMORANDUM^* 

Defendant-Appellant John Vaccaro appeals the district court's dismissal of his motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (1988). Vaccaro argues that his plea agreement should be vacated because the government breached the agreement and because he received ineffective assistance of counsel. Vaccaro contends that the district court erred in dismissing his motion without conducting an evidentiary hearing. We affirm.

Analysis

Vaccaro alleges that he was induced to plead guilty by additional off-the-record promises made by the prosecutor to both himself and his defense counsel, Mr. Gentile. Because Vaccaro's allegations are based on occurrences entirely outside the record, the district court was required to hold an evidentiary hearing unless it could conclusively decide, on the basis of documentary testimony and evidence in the record, whether such promises inducing the plea of guilty were made and, if so, whether the government breached the promises. See Shah v. United States, 878 F.2d 1156 (9th Cir.), cert. denied, 110 S. Ct. 195 (1989); United States v. Espinoza, 866 F.2d 1067 (9th Cir. 1988); see also Mayes v. Pickett, 537 F.2d 1080, 1083 (9th Cir. 1976), cert. denied, 431 U.S. 924 (1977).

Here, the record conclusively demonstrates that the government did not breach any promises inducing the plea of guilty. Vaccaro alleges that the government promised to vacate a forfeiture proceeding in another district, and to arrange that Vaccaro not be subject to central monitoring in prison. His own submissions demonstrate, however, that no such results were ever promised. In regard to the forfeiture proceedings, Gentile's letter evidences that the prosecutor agreed only to contact the AUSA handling the Reno forfeiture hearing "and discuss with him the possibility of his agreeing to the vacating of the bond forfeiture...." The letter does not establish, as Vaccaro alleges, that AUSA Henderson promised that the Reno office would dismiss the bond forfeiture proceedings. Similarly, Gentile's letter does not demonstrate that the prosecutor assured him that the Bureau of Prisons would not designate Vaccaro with the inmate central monitoring label. Rather, the letter states only that the prosecutor agreed to "write a letter to the Bureau of Prisons expressing the belief that central monitoring was not required of Mr. Vaccaro." Vaccaro has not demonstrated that these representations, if they occurred, played any substantial part in inducing his plea, nor, as we explain below, is it at all probable that they would have.

Because Vaccaro's allegations are refuted by his own evidence, we conclude that the district court did not abuse its discretion in denying Vaccaro's request for an evidentiary hearing on this issue. Shah, 878 F.2d at 1160. Viewed against the record, Vaccaro's allegations do not state a claim for breach of the plea agreement. United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989).

To invalidate his plea based on ineffective assistance of counsel, Vaccaro must show that his counsel's performance was deficient and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate prejudice, Vaccaro must prove that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990), cert. denied, 111 S. Ct. 1398 (1991).

Vaccaro first claims ineffective assistance by reason of his trial attorneys' failure to include the off-the-record promises in the plea agreement. Vaccaro has failed to demonstrate that this failure prejudiced his defense. Vaccaro alleges that he would not have entered the plea agreement because these matters were important to him and an integral part of the overall plea. Vaccaro, however, has alleged no special circumstances that might support the conclusion that he placed particular emphasis on the two promises. See Lockhart, 474 U.S. at 60. It is improbable that Vaccaro would have insisted on going to trial on an indictment under which his exposure would have exceeded his life expectancy if the promises to write the Bureau of Prisons and to call the AUSA handling the forfeiture proceeding were not included in the plea. See United States v. Freeney, 841 F.2d 1000, 1002 (9th Cir. 1988). The prosecutor made no guarantees as to the probable results of his efforts.

Vaccaro next alleges that he received ineffective assistance of counsel because of his counsels' failure fully to explain: (1) the absence of implied or intended violence under 18 U.S.C. § 894; (2) the overt acts necessary to convict; and (3) the citizenship and residency of the alleged victims. According to Vaccaro, this failure to inform deprived him of awareness of his defenses.

Our review of the record demonstrates that Vaccaro was apprised of the essential elements of the offense, including the requirement that some member of the conspiracy engage in an overt or open act. Cf. United States v. Bigman, 906 F.2d 392, 394 (9th Cir. 1990). In addition, the court defined extortionate as involving the use or threat of violence or other criminal means for the purpose of causing harm to a person, person's reputation or property. We do not understand how counsel's failure to discuss the citizenship or residency of the alleged victims is relevant and Vaccaro does not elaborate. Conviction under 18 U.S.C. § 894 does not require that the extortion victims be of any particular nationality, as long as the crime was committed within the jurisdiction of the United States.

Because the record demonstrates that Vaccaro is not entitled to relief on his claims of ineffective assistance of counsel, we conclude that the district court did not abuse its discretion in denying an evidentiary hearing on these claims. Burrows, 872 F.2d at 917.

The decision is AFFIRMED.