United States of America, Plaintiff-appellee, v. Glenn R. Hadland, Defendant-appellant, 141 F.3d 1181 (9th Cir. 1998)

MEMORANDUM^* 

Glenn R. Hadland appeals pro se from the district court's denial of his 28 U.S.C. § 2255 motion challenging his conviction for conspiracy to commit mail fraud. We review de novo a district court's decision on a section 2255 motion. See Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir. 1995). We have jurisdiction pursuant to 28 U.S.C. § 2255, and we affirm.

Hadland contends his trial counsel was ineffective for failing to raise the statute of limitations as an affirmative defense during his guilty plea proceedings. In support of his argument, Hadland points out that during the plea hearing the information was amended to reflect that the offense conduct ceased in November of 1987. Counsel, however, agreed to this specific amendment in order to effectuate the provision of the plea agreement stating that Hadland would not be sentenced pursuant to the Sentencing Reform Act. Under pre-Guidelines law, counsel could argue for a probationary sentence and Hadland, if imprisoned, could become eligible for parole. Hadland has failed to make a showing sufficient to overcome the presumption that counsel's conduct might be considered sound strategy. See United States v. Span, 75 F.3d 1383, 1387 (9th Cir .1996).

To the extent Hadland argues he was unaware that the statute of limitations had run on the charges, the record belies his claim. The record contains two written waivers, signed personally by Hadland, of the statute of limitations defense.¹  We do not agree that the waivers were worded so ambiguously as to render his waiver involuntary.

Nor is there merit to Hadland's contention that counsel was ineffective for seeking a sentence under pre-Guidelines law because Hadland's sentencing range would have been lower under the Guidelines. As noted above, counsel could not have sought a probationary sentence under the Guidelines, nor would Hadland have been eligible for parole. Accordingly, even assuming Hadland might have been subject to a lower sentencing range under the guidelines, counsel was not ineffective for advising his client to agree that the Sentencing Guidelines did not apply to his case. See Span, 75 F.3d at 1387; cf. Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990) (holding that erroneous prediction by counsel of possible sentence did not constitute ineffective assistance of counsel).² 

Hadland's contention that counsel was ineffective for failing to challenge the district court's restitution order for being beyond the offense of conviction or based on his inability to pay, is equally unavailing. Hadland agreed to the specific restitution amount as a part of his plea agreement. See 18 U.S.C.A § 3663(a) (3) (court may order restitution in any criminal case to extent agreed to by the parties in a plea agreement); United States v. Soderling, 970 F.2d 529, 533 (9th Cir. 1992) (restitution may be ordered beyond offense of conviction where defendant agrees to such in a plea agreement).

AFFIRMED.