Unpublished Disposition, 880 F.2d 416 (9th Cir. 1989)

MEMORANDUM^** 

William J. Sheehan appeals pro se the denial without a hearing of his 28 U.S.C. § 2255 motion to vacate the sentence imposed after he pled guilty to seven counts of mail fraud in violation of 18 U.S.C. § 1341. He claims the sentencing court relied upon an erroneous presentence report, that he received ineffective assistance of counsel, that the court improperly imposed disparate sentences upon him and his codefendant, and that his guilty plea is invalid because he was mentally incompetent at the time it was made. We affirm.

We review de novo the denial of a 28 U.S.C. § 2255 motion. United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. dismissed, 478 U.S. 1033 (1986). The district court may deny a Sec. 2255 motion without a hearing where "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. We will affirm the district court when a petitioner's allegations "viewed against the record, either fail to state a claim for relief or are 'so palpably incredible or patently frivolous as to warrant summary dismissal.' " Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985) (quoting United States v. Schaflander 743 F.2d 714, 717 (9th Cir. 1984).

Sheehan first contends that the presentence report contained inaccuracies. Although defendants are entitled to review and challenge presentence reports prior to sentencing, these rights may be waived. Brown v. United States, 610 F.2d 672, 676 (9th Cir. 1980). Waiver will be found when the district court affords an opportunity to review and challenge the presentence report, but the defendant fails to do so. Id. The sentencing district court asked Sheehan whether he understood his right to challenge the presentence report and desired to give up that right. Sheehan responded affirmatively. Sheehan waived his right to challenge any inaccuracies in the report.

Sheehan next claims that he was deprived of his right to effective assistance of counsel. He must show that his attorney is guilty of errors or omissions which "reflect a failure to exercise the skill, judgment, or diligence of a reasonably competent attorney, and that [he] suffered prejudice as a result of these errors." Weygandt v. Ducharme, 774 F.2d 1491, 1493 (9th Cir. 1985). There is "a strong presumption that counsel's performance fell within the wide range of reasonably effective assistance." Id.

Only one of the errors Sheehan ascribes to his counsel requires discussion. Sheehan alleges his attorney failed to investigate the possibility he was mentally incompetent to plead guilty. However, the evidence did not suggest incompetence. Only the psychology report prepared at counsel's request prior to sentencing indicated any psychological difficulties, and as discussed below, it does not suggest incompetence. See Chavez v. United States, 656 F.2d 512, 518 (9th Cir. 1981). Sheehan had no history of mental problems. He held positions of authority in the business world. Sheehan comported himself well in court and appeared to understand the proceedings. Sheehan assured the court his mind was "clear" and that he was not under the influence of anything whatsoever that impair [ed] or affect [ed his] judgment." Finally, Sheehan's 17-page letter to the judge challenging the presentence report and his decision to consult independent counsel suggest Sheehan fully understood his case. Cf. Harding v. Lee, 834 F.2d 853, 857 (9th Cir. 1987).

Sheehan also challenges the severity of his sentence in comparison with the punishment imposed upon a co-conspirator. We review the sentencing court's decision to impose disparate sentences for abuse of discretion. "Absent an infringement of defendant's constitutional right to stand trial, a district court judge is not required to explain the basis for disparate sentences, within statutory limits, imposed upon similar codefendants." United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986). Sheehan does not contend that his sentence was outside the statutory range or that his right to stand trial was denied. The district court properly refused to vacate Sheehan's sentence on this ground.

Sheehan contends that the record does not reflect the necessary factual basis for acceptance of his guilty plea. Because this claim was not raised before the district court in Sheehan's motion, we decline to consider it on appeal. See United States v. Hoffman, 607 F.2d 280, 285-86 (9th Cir. 1979).

Finally, Sheehan contends that he was mentally incompetent to plead guilty. "A defendant is not competent to waive constitutional rights if mental illness has substantially impaired his or her ability to make a reasoned choice among the alternatives presented and to understand the nature and consequences of the waiver." Chavez v. United States, 656 F.2d 512, 518 (9th Cir. 1981). Sheehan assured the sentencing court that his mind was clear and that his judgment was unimpaired. The sentencing court concluded that Sheehan was "really free of any coercive influence of any sort in making these guilty pleas, that his pleas [were] intelligently made, that he ... entered the pleas of guilty because he did commit the crimes charged in those counts and for no other reason." Sheehan points to no evidence in the record to support his contrary contention. Sheehan's claim that the psychology report prepared prior to sentencing could support a finding of incompetence is without merit. The report shows only that Sheehan was depressed and unwilling to face his problems. It contains no evidence of delusion, illusions, hallucinations or other mental condition which would have prevented Sheehan from making a reasoned choice. The district court properly found that Sheehan was mentally competent at the time he pled guilty.

AFFIRMED.