Unpublished Disposition, 841 F.2d 1130 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 841 F.2d 1130 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Russell Leon CARTER, Defendant-Appellant.

No. 87-2270.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 9, 1988.Decided March 3, 1988.

Before SKOPIL, REINHARDT and LEAVY, Circuit Judges.


MEMORANDUM* 

Russell Carter appeals from the denial of his motion to vacate his sentence under 28 U.S.C. § 2255 (1982). Carter argues that he is entitled to a hearing in district court on his claims that (1) the sentencing judge was biased, (2) his guilty plea was induced by a coerced confession, (3) his guilty plea was not voluntary, and (4) he was denied effective assistance of counsel. We affirm.

FACTS AND PROCEEDINGS BELOW

Carter was indicted for robbing a federally insured savings and loan association with the use of a dangerous weapon in violation of 18 U.S.C. §§ 2113(a) and (d) (1982). Carter and co-defendant Tina Arendale used a toy gun to commit the robbery. Before leaving the bank, Arendale injected the employees with a caustic solution. Carter pleaded guilty to the robbery in return for a dismissal of the charge for robbery with use of a dangerous weapon. He was sentenced to twenty years with parole eligibility determined under 18 U.S.C. § 4205(a) (1982).

DISCUSSION

We review de novo the denial of a section 2255 motion. United States v. Grewal, 825 F.2d 220, 222 (9th Cir. 1987). The district court's denial of relief without a hearing will be affirmed if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255.

1. Sentencing Judge's Bias and Use of False Information

Carter alleges that the sentencing judge was biased and included materially false information in recommendations made to the Parole Commission. Nothing in the record reveals any evidence to support his claim. Conclusory statements do not justify an evidentiary hearing. Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). Carter's claim that the sentencing judge's parole recommendation contained false information is also without merit. The Commission has not changed his salient factor score, and, as Carter concedes, his claim should be resolved at the administrative level.

Carter contends that his guilty plea was involuntary because it was induced by a coerced confession. Again, because his allegations are merely conclusory, he is not entitled to a hearing. See id. Moreover, by pleading guilty he forecloses any challenge to the validity of his prior confession. See, e.g., Marrow v. United States, 772 F.2d 525, 527 (9th Cir. 1985).

Carter alleges that his guilty plea was involuntary because (1) he believed he pleaded guilty to robbery rather than aiding and abetting robbery; (2) he erroneously believed he could have been sentenced to forty-five years if he did not accept the plea agreement; and (3) he did not know how the Parole Commission would evaluate his guidelines.

The indictment gave Carter notice that he was charged with aiding and abetting a bank robbery in violation of 18 U.S.C. § 2113(a) and 18 U.S.C. § 2 (1982). Moreover, it is irrelevant whether Carter believed he pleaded guilty to being a principal or an aider or abettor. See United States v. Causey, 835 F.2d 1289, 1291-92 (9th Cir. 1987). Carter's subjective misunderstanding that he could have been sentenced to forty-five years if convicted at trial does not render his plea involuntary. See United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir.), cert. denied, 108 S. Ct. 107 (1987); see also United States v. Plain, 748 F.2d 620, 622 (11th Cir. 1984) (defendant's subjective belief as to parole date did not render plea involuntary). Further, Carter's ignorance of the fact that the Parole Commission would consider the assault on the employees does not invalidate his guilty plea. See United States v. Clark, 781 F.2d 730, 733 (9th Cir. 1986) (failure to inform defendant that recommendation would be made to a parole board did not render plea involuntary). None of Carter's allegations relating to the voluntariness of his plea entitle him to relief. The plain language of section 2255 permits courts to avoid holding hearings on meritless claims.

Carter contends that a hearing should have been held to determine whether his attorney was incompetent because counsel withdrew a request that the Parole Commission set his parole date under 18 U.S.C. § 4205(b) (2) (repealed effective November 1, 1987). The sentencing judge required, however, that Carter serve one-third of his sentence before being eligible for parole. See 18 U.S.C. § 4205(a) (repealed effective November 1, 1987).

To prevail on an ineffective assistance of counsel claim Carter must show his counsel's performance was deficient and prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1986). Here, the judge stated that he would recommend that the defendant receive the maximum sentence of twenty years as this was the most aggravated bank robbery he had ever encountered. The Parole Commission must consider the judge's recommendations, 28 C.F.R. Sec. 2.19(a) (4), and also may decide to exceed its guidelines, 18 U.S.C. § 4206(c) (1982) (repealed effective November 1, 1987). Accordingly, Carter's attorney may have reasonably concluded that the Parole Commission would require that Carter serve more than one-third of his sentence. Further, Carter was not prejudiced by his counsel's conduct. Carter's codefendant also was required to serve one-third of her twenty year sentence under section 4205(a). Her record was minor compared to Carter's. Moreover, Carter had already received a substantial modification in his sentence as a result of the plea bargain.

Finally, Carter argues that the district court abused its discretion in refusing to allow the Parole Commission to set his parole date under section 4205(b) (2). A sentence will be vacated only if false or unreliable information was demonstrably made the basis for the sentence. United States v. Stewart, 779 F.2d 538, 541 (9th Cir. 1985); United States v. Ruster, 712 F.2d 409, 412 (9th Cir. 1983). Here, the judge's statement that he "would have to indicate to the parole commission the maximum amount of time ... the defendant should serve" is entirely consistent with statutory authority. See 18 U.S.C. § 4207(4) (1982) (repealed effective November 1, 1987). The judge was not mislead as to the time Carter should serve without parole.

Carter's claims are without merit. The district court properly denied his section 2255 motion without holding an evidentiary hearing.

AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3