Unpublished Disposition, 846 F.2d 1382 (9th Cir. 1985)

MEMORANDUM

Grimes, a federal prisoner, appeals pro se the district court's order dismissing his motion to vacate a criminal sentence under 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. § 2255. We review the denial of a section 2255 motion de novo. United States v. Grewal, 825 F.2d 220, 222 (9th Cir. 1987). We reverse.

In his first claim for relief, Grimes contends that the district court and the government violated his due process rights by unduly delaying the disposition of his section 2255 motion. Upon reviewing the record, we are unable to find any evidence of undue delay by either the government or the district court. Indeed, we believe that Grimes himself is responsible for the delay in the disposition of his section 2255 motion of which he now complains.

Grimes maintains that the government "defaulted" when it failed to respond to his section 2255 motion by the original August 10, 1984, deadline. Although he does not explain the connection between this allegation and his due process claim, we assume that his real claim is that the district court violated his due process rights by not entering a judgment of default against the government under the circumstances. Regardless of the precise terms in which we recast this claim, however, we find no merit in it. Assuming that a finding of default is proper only when, as in Fed. R. Civ. P. 55(a), the opposing party has failed to plead or otherwise defend, we cannot say that the circumstances portrayed by Grimes justify a finding that the government "defaulted" sometime in August of 1984. The record shows that on August 7, the government filed (1) a preliminary response, (2) a motion to continue the proceedings, and (3) a motion for a declaration that Grimes had implicitly waived his attorney-client privilege with his attorney Cook.

The government apparently sought a continuance in order to obtain information from Cook before it could file an effective response. Grimes contends the court granted the government a continuance only until August 24. We have been unable to verify this assertion. No motion was brought to call such a deadline, if it existed, to the attention of the district court. The district court did not rule on the attorney-client privilege motion until October 24. The district court thus had no reason to enter a default judgment against the government.

Grimes then argues that even if the government's failure to file a final response to his motion was justified by its need to acquire information from Cook beforehand, after the district court declared Grimes's attorney-client privilege waived on October 24, 1984, the government no longer had any reason to delay its response. Because the government failed timely to file a response after the district court's ruling, argues Grimes, the government deprived him of his due process rights. Again, we reinterpret Grimes's claim as one alleging that the district court denied his due process by not declaring the government in default at that time. Despite the court's finding that Grimes had implicitly waived his attorney-client privilege, Cook would not give the government information until Grimes expressly waived his privilege. Grimes, however, refused to grant the waiver until he had counsel appointed to advise him on the issue. Although counsel was appointed on July 17, 1985, Grimes did not expressly waive his privilege until February 1986. Consequently, any delay in the government's response was caused, in part, by Grimes's own conduct. One whose own conduct resulted in delay will not be heard to complain that such delay violates his right to due process. See Ivers v. United States, 581 F.2d 1362, 1372 (9th Cir. 1978).

In his second ground for relief, Grimes contends the district court erred by dismissing his section 2255 motion without granting him an evidentiary hearing on his claim of ineffective assistance of counsel. We agree.

Hearings on section 2255 motions are mandatory "whenever the record does not affirmatively manifest the factual or legal invalidity of the petitioner's claims." Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982) (Baumann) . Evidentiary hearings are usually required if the motion states a claim based on matters outside the record or events outside the courtroom. See United States v. Espinoza, 841 F.2d 326, 328 (9th Cir. 1988) (Espinoza) . Movants need not present detailed evidence, "but must only make specific factual allegations which, if true, would entitle him to relief." Baumann, 692 F.2d at 571.

As the basis for his claim of ineffective assistance of counsel, Grimes alleges that Cook erroneously informed him that if he did not plead guilty in the second criminal proceeding, his mother would lose her home as a result of the bail bond forfeiture in the first case. To prevail on a claim of ineffective assistance of counsel, a defendant must shows that (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's defective representation. Strickland v. Washington, 466 U.S. 668, 690, 694 (1984); see Hill v. Lockhart, 106 S. Ct. 366, 370 (1985) (Hill) (applying Strickland to guilty pleas based on effective assistance of counsel). In challenging a guilty plea, a defendant satisfies the prejudice requirement if he demonstrates a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 106 S. Ct. at 370.

The forfeiture proceedings that threatened Ophelia Grimes's home arose from her son's failure to appear for presentence evaluation in the prior criminal proceeding. There appears to be no connection between the forfeiture proceedings in the prior case and Grimes's plea in the subsequent proceedings. Even the government maintains that the two events are unrelated. Hence, if Cook actually advised Grimes to plead guilty to avoid losing the house, it would appear that his conduct fell below Strickland's objective standard of reasonableness. Cf. Iaea v. Sunn, 800 F.2d 861, 864-65 (9th Cir. 1986) (counsel's assistance was defective where he urged his client to plead guilty by erroneously informing him that he would otherwise be subject to the state's minimum sentencing law).

The record indicates that Grimes originally intended to go to trial. First, he initially pled "not guilty." Second, he stated in his section 2255 motion that he (1) intended to go to trial, (2) believed that he had "an excellent chance of acquittal," and (3) decided to change his plea because of the possibility of losing the house should he go to trial. Finally, Ophelia Grimes stated in her affidavit that, but for Cook's advice concerning the loss of the house, her son would not have changed his plea. If this is all true, it would appear from the record before us that there is a reasonable probability that, but for Cook's advice, Grimes would not have pled guilty.

The government contends that Cook's affidavits effectively rebut Grimes's allegations and show that Grimes's claims are without merit. Cook's denial of the allegations, however, merely created a question of fact that should have been explored at an evidentiary hearing. See Espinoza, 841 F.2d at 328 (evidentiary hearing was required on a Sec. 2255 motion where the parties' affidavits raised an issue of fact).

The government further contends that, because the bail bond forfeiture was declared one month before Grimes's guilty plea, he must have known at the time of his plea that the forfeiture proceedings were not connected, and hence could not have relied on the alleged advice in changing his plea. Although the forfeiture had been declared and entered by the time Grimes changed his plea, no action had yet been taken against his mother's house. Grimes could therefore have reasonably believed that the house was still in danger of being forfeited.

Grimes's section 2255 motion stated a claim based on events outside the record. In addition, the record does not conclusively or plainly show that Grimes was not entitled to relief. Hence, the district court erred by dismissing Grimes's motion without granting him an evidentiary hearing. See Marrow v. United States, 772 F.2d 525, 530 (9th Cir. 1985) (when the allegations in a Sec. 2255 motion involve events outside the record, an evidentiary hearing is usually required); Baumann, 692 F.2d at 571 (court must remand a Sec. 2255 motion for an evidentiary hearing if the record does not conclusively or plainly show that the movant was not entitled to relief). We therefore reverse the judgment of the district court and remand for an evidentiary hearing on Grimes's claim of ineffective assistance of counsel.

REVERSED AND REMANDED.