Unpublished Disposition, 880 F.2d 416 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 880 F.2d 416 (9th Cir. 1989)

No. 87-2418.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and SCHROEDER, Circuit Judges, and DICKRAN M. TEVRIZIAN, Jr.,**  District Judge.

MEMORANDUM*** 

Chester L. Blum appeals the district court's denial of his section 2255 motion, stemming from an alleged conflict of interest that caused Blum to enter a guilty plea in a 1962 murder case. In response to Blum's petition, an evidentiary hearing was held before the district court at which both Blum and his lawyer from the 1962 murder trial testified. The district court held that Blum's plea of guilty to second degree murder met all then-existing standards for constitutionality, and denied Blum's motion.

Blum was sentenced in 1962, before the new constitutional standard for pleas was set by Boykin v. Alabama, 395 U.S. 238 (1969). The validity of a plea entered before Boykin and McCarthy v. United States, 394 U.S. 459 (1969), is determined by the then-governing standards of proof. United States v. McWilliams, 730 F.2d 1218, 1223 (9th Cir. 1984) (Schroeder, J., concurring). Pre-Boykin pleas were constitutional if they were voluntarily made with an understanding of the charge and of the consequences of the plea. Id. Blum's contention that the law before Boykin contains precursor precedent requiring more than an understanding and voluntary plea is without merit. The Boykin requirements do not apply retroactively. Id.

Testimony was given at the district court hearing that shows Blum made his plea knowingly and voluntarily. While Blum testified that he was not apprised of the consequences of his plea, Blum's attorney, Fry, testified that he had counseled Blum a number of times on the consequences of both the charge and the plea. The notation of judgment of conviction also recites that Blum was informed of the nature of the charges before making his plea. We find no error in the district court's discounting of Blum's testimony as self-serving, or its finding that Fry's concern for Blum was genuine and his counsel to Blum was adequate.

Blum has also failed to meet the standard set forth by Hill v. Lockhart, 474 U.S. 52 (1985) (adopting the standard of Strickland v. Washington, 466 U.S. 668 (1984)), for demonstrating conflict of interest on the part of his counsel. The district court found that Fry's performance "was not unreasonable." Blum has shown neither that his attorney's behavior fell below the objective standard of reasonability, nor that Blum was prejudiced by the alleged conflict of interest. The district court did not err in finding that no actionable conflict of interest existed.

AFFIRMED.

 *

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

Honorable Dickran M. Tevrizian, Jr., United States District Judge for the Central District of California, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3