Unpublished Disposition, 855 F.2d 861 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 855 F.2d 861 (9th Cir. 1988)

No. 87-4182.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and CANBY, Circuit Judges and JOHN RHOADES*** , Jr., District Judge.

MEMORANDUM** 

Alvin Lee LaTray appeals the district court's dismissal of his petition for a writ of habeas corpus. LaTray pleaded guilty in state court to a charge of aggravated assault in exchange for having the State of Montana dismiss a charge of deliberate homicide. He claims ineffective assistance of counsel because his lawyer failed to suppress LaTray's confession and was not diligent in informing LaTray of exculpatory statements by witnesses. LaTray also claims that his plea was not knowing and voluntary. LaTray's claims were extensively examined by the Montana courts. We agree with the Montana Supreme Court that, while counsel's efforts could have been more diligent, the lack of diligence did not prejudice LaTray. The district court's dismissal is AFFIRMED.

To prevail on an ineffectiveness claim LaTray must show that there is a reasonable probability that, but for counsel's deficient performance, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). Because LaTray challenges a guilty plea, he must show 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).

Our review convinces us that if counsel had pursued LaTray's leads and had otherwise behaved as LaTray now urges, the outcome would probably not have been different. LaTray's makes no showing that his confession would have been subject to suppression, or that it was necessary to the case against him. The inconsistencies in the testimony of two witnesses would not have provided LaTray with a defense. Neither those inconsistencies nor any other evidence to which LaTray refers would have overcome the overwhelming evidence of guilt.

The trial court extensively questioned petitioner and explained the consequences of the plea agreement. This fact, LaTray's knowledge of the law, and the likely result of a guilty verdict on a homicide charge, demonstrate that LaTray's decision to plead guilty to a lesser charge was knowing and voluntary. The bargain was advantageous to him, and he would not have withdrawn from it even if counsel's representation had been flawless.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

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 Cir.R. 36-3

 ***

The Honorable John Rhoades, Jr., United States District Judge for the Southern District of California, sitting by designation

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