Unpublished Disposition, 867 F.2d 613 (9th Cir. 1987)

MEMORANDUM^** 

Michael George Binning in propria persona again appeals the district court's denial of his Section 2255 petition. We previously affirmed in part the district court's denial of the petition but remanded for further findings as to purported representation by his parole officer to Binning. The district court held an evidentiary hearing on this issue with Binning participating by phone from his place of incarceration instead of in open court.

Binning appeals the second denial of his Section 2255 petition on the grounds that he was not physically present for the hearing, and that noise in the prison office where he used the telephone precluded fair participation in the hearing. Binning does not, however, request another hearing but asks rather to vacate his sentence because he lost credit for "street time" because of his parole officer's alleged misrepresentations.

BACKGROUND

We have previously rejected Binning's arguments that his parole revocation violated his constitutional rights. We remanded to the district court, however, to address Binning's contention that forfeiture of his "street time" was improper. The remand was for further factual findings regarding a promise allegedly made by Binning's parole officer, Jack Verhagen, that Binning's conviction of September 14, 1979 would not be used as a basis for parole revocation.

Verhagen supposedly represented to Binning that if he pleaded guilty and received a sentence of six months, Verhagen would recommend that this conviction not be used as a basis for parole revocation. Binning then entered a no contest plea on the basis of Verhagen's representation, and was sentenced to a term in county jail. The United States Parole Commission followed Verhagen's recommendation and did not revoke Binning's parole.

Binning continued to violate the terms of his parole following his release from incarceration for the September 1979 conviction. Consequently, Verhagen requested a warrant for Binning's arrest on April 27, 1980 based on various parole violations including the September 1979 conviction. In October 1980, following a revocation hearing, the Parole Commission revoked Binning's parole for, among other things, the September 1979 conviction to which Binning had pleaded no contest pursuant to his conversation with Verhagen.

The record did not reflect whether Verhagen promised never to use that conviction arising from his car theft arrest as a basis for Binning's possible future parole revocation. If Verhagen had so promised, or such could be reasonably construed, then the promise should be honored. Therefore, we remanded the case to the district court to determine Verhagen's bargain with Binning.

Upon remand the district court ordered written briefs and affidavits. Both sides filed briefs, and the government filed affidavits. Binning did not file affidavits but did move for an evidentiary hearing.

Parole officer Verhagen's affidavit relates that he did not promise never to use Binning's car theft conviction as a basis for possible future parole revocation and would never make such a promise even if so empowered because it would be counter productive to a parolee's adjustment.

The government also submitted the affidavit of Ronald Fawcett who witnessed the conversation at issue between Binning and Verhagen. Fawcett's affidavit supports Verhagen's version of the conversation.

On January 27, 1987, the district court held an evidentiary hearing by phone. Jack Verhagen, Ronald Fawcett, and Mr. Binning were sworn, testimony heard, and the matter taken under advisement.

On February 3, 1987, the district court denied Binning's section 2255 motion, and judgment was entered dismissing the case on February 4, 1987.

DISCUSSION

A district court's factual findings on a section 2255 motion are reviewed under the "clearly erroneous" standard. United States v. Arellanes, 767 F.2d 1353, 1357 (9th Cir. 1985). This court must accept the district court's findings of fact unless upon review the appellate court is left with the definite and firm conviction that a mistake has been committed. Johnson v. United States Postal Service, 756 F.2d 1461, 1464 (9th Cir. 1985).

Although a district court's denial of a petition for post conviction relief is reviewed de novo, Roth v. United States, 724 F.2d 836 (9th Cir. 1984), here the "clearly erroneous" standard applies because the remand directed the district court to make findings as to Verhagen's bargain with Binning. These findings, concerning the nature and scope of the parole officer's promise, are findings of fact.

A review of Verhagen's and Fawcett's affidavits reveals that the district court did not err in finding that appellant's parole officer did not promise never to use appellant's September 1979 conviction as a basis for possible future parole revocation. Both government's affidavits confirm that no such promise was made.

As to appellant's contention that his physical absence from the evidentiary hearing was unfair, a defendant's presence is not required at a section 2255 evidentiary hearing. United States v. Villarreal, 508 F.2d 1132, 1133-34 (9th Cir. 1974).

Regarding appellant's argument that noise and commotion further precluded his fair and adequate participation in the evidentiary hearing "thereby making a circus of the hearing," a review of the reporter's transcript of the hearing reveals that all participants could apparently hear and understand each other. Further, appellant "does not believe another hearing would serve the interests of justice."

CONCLUSION

Upon direction from this court as a basis for probation revocation, the district court found that Verhagen made no such promise as asserted by petitioner. The district court, therefore, did not need to determine whether Binning wrongfully lost credit for his "street time."

Binning's presence at the evidentiary hearing was not required. In any event he is not requesting a rehearing notwithstanding his allegations of noise that the hearing unfair. The determinative issue is whether the district court clearly erred in concluding that Binning's parole officer did not promise never to use the September 1979 conviction as a basis for future parole revocation. The district court did not clearly err in its conclusion.

AFFIRMED.