Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1987)

MEMORANDUM^** 

Ray Ross, a Canadian citizen, appeals the district court's orders denying his 28 U.S.C. § 2255 motion to vacate his sentence and a subsequent reconsideration motion without an evidentiary hearing. He contends that his guilty plea was involuntary because he was affirmatively misled by his defense attorney into believing that he would not be "automatically deportable" after pleading guilty to cocaine charges. He further alleges that he was misled by representations made by the district court and the prosecutor regarding the consequences of his guilty plea. We affirm.

On October 15, 1985, Ross was one of nine defendants indicted in a multi-count superseding indictment charging Ross with conspiracy to distribute cocaine and distribution of cocaine. On January 6, 1986, Ross pleaded guilty to a charge of distributing 6.9 grams of cocaine. At the time Ross pleaded guilty, he was an illegal alien and had independently retained an immigration attorney. On June 6, 1986, the district court sentenced Ross to a two-year prison term, suspended the sentence, and placed Ross on probation for five years.

The plea agreement was the result of several conversations among the prosecutor, Ross, and Ross's attorney. At Ross's request the plea agreement included a provision that required the government to inform the Immigration and Naturalization Service (INS) of Ross's cooperation with the government. After Ross was sentenced, however, the INS began deportation proceedings against him because of his cocaine conviction.

On April 14, 1987, Ross filed a motion under 28 U.S.C. § 2255 to set aside his guilty plea in order to avoid the deportation consequences of his plea.

On July 10, 1987, the district court, without holding an evidentiary hearing, denied the section 2255 motion because: (1) the court had no obligation to inform Ross of the collateral consequences of his guilty plea; (2) Ross had failed to establish ineffective assistance of counsel; and (3) the guilty plea was not entered unknowingly or involuntarily.

On July 23, 1987, Ross filed a motion for reconsideration, which was supplemented by another affidavit.

The district court denied Ross's motion for reconsideration on September 18, 1987. Ross timely appeals from both the denial of his section 2255 motion and the denial of his reconsideration motion.

We review de novo the denial of Ross's section 2255 motion. United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. dismissed, 478 U.S. 1033 (1986). No evidentiary hearing is required for a section 2255 motion if the files and records of the case conclusively show that the petitioner is not entitled to relief. United States v. Birtle, 792 F.2d 846, 849 (9th Cir. 1986). This court reviews a denial of an evidentiary hearing on a motion to reconsider for an abuse of discretion. United States v. Packwood, 848 F.2d 1009, 1010 (9th Cir. 1988).

Defense Attorney

Ross first contends that his guilty plea was involuntary and that he received ineffective assistance of counsel because his defense attorney failed to advise him that he would be "automatically deportable" as a result of pleading guilty to a cocaine charge. Based on this contention, Ross asserts that he was entitled to an evidentiary hearing and that the district court erred in dismissing his section 2255 motion. These contentions are without merit.

To establish ineffective assistance of counsel, a defendant must first show that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 (1984) (Strickland) . Ross has failed to meet the first prong of the Strickland test. Deportation constitutes a collateral consequence of a plea of guilty. Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.), cert. denied, 429 U.S. 895 (1976) (Fruchtman) . Even if Ross could substantiate his claims at an evidentiary hearing, counsel's error is made in regards to a collateral consequence of a conviction and "cannot be held to be below an objective standard of reasonableness." Torrey v. Estelle, 842 F.2d 234, 237 (9th Cir. 1988) (citation omitted).

Next, Ross alleges that his defense attorney affirmatively misrepresented "that he would not be automatically deported as a result of pleading guilty to a cocaine distribution charge." In order to demonstrate this affirmative misrepresentation, Ross relies exclusively on a letter that was written to him by his attorney. In pertinent part the letter reads:

I have begun doing the research and drafting of our Motion for Judicial Recommendation Against Deportation, which will be filed in early March. In said motion we will ask Judge Fong as the sentencing Judge in the criminal action to recommend against deportation. If he agrees with us, you will not be deported. If he denies our motion, we will still have an opportunity to present our case in a deportation hearing before an immigration judge (SER 75).

Ross's attorney misstated the law with respect to the effect that a judicial recommendation would have upon Ross's deportation consequences. Title 8 U.S.C. § 1251(b) provides that a trial judge cannot recommend against the deportation of an alien who is charged with being deportable under section 1251(a) (11), relating to narcotic convictions.

We need not determine whether counsel's misinformation falls outside the range of reasonable competence because Ross has failed to meet Strickland's prejudice requirement. Under the Strickland test, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). In this case the misinformation provided by counsel did not significantly affect Ross's decision to plead guilty.

Ross has not alleged that he was innocent of the charges, had any viable defense, or would have changed his plea to not guilty and gone to trial if he had known that he was "automatically deportable." In fact, the undisputed evidence against Ross was overwhelming. Ross's contention that had he known of the deportation consequences "he would have urged his attorney to consider other possible pleas ... which would not have led to automatic deportability" is totally without merit. In light of the overwhelming evidence, the prosecution refused to consider any other plea agreement except a plea by Ross to one of the three felony charges in the indictment. Accordingly, it is plain from the record that Ross cannot make the necessary showing of prejudice. The district court correctly denied Ross's section 2255 motion without an evidentiary hearing and because Ross relied upon the same evidence to support his motion to reconsider the district court did not abuse its discretion in denying the reconsideration motion.¹ 

Representations of the Prosecutor

A plea of guilty entered by one fully aware of its direct consequences must stand unless induced by threats, promises (i.e. bribes), or misrepresentations by the prosecutor. United States v. Mathews, 833 F.2d 161, 165 (9th Cir. 1987) (Mathews) (citing Brady v. United States, 397 U.S. 742 (1970)). Since Ross does not deny that he was fully aware of the direct consequences of this plea, he must establish misrepresentations, threats or improper promises on part of the government. Id.

Ross concedes in his motion for reconsideration and his opening brief that the government did not intentionally misrepresent the consequences of his guilty plea. He contends, however, that the government "misled" him into believing that he would not be deportable because the plea agreement provided that the government would make Ross's cooperation known to the INS. According to Ross, this promise led him to believe that he had a reasonable chance of not being deported.

Because Ross has not alleged that the prosecutor misrepresented facts or law pertaining to the collateral deportation consequences of his guilty plea, the district court properly dismissed this claim without an evidentiary hearing. See Mathews, 833 F.2d at 164.² 

The District Court

Ross also contends that he sufficiently established in his reconsideration motion that his plea was involuntary because the district court mislead him about the deportation consequences of his plea of guilty. This contention is without merit.

The district court made no remarks regarding Ross's collateral deportation consequences. The district court was under no duty to disclose the collateral consequences of Ross's plea. Steinsvik v. Vinzant, 640 F.2d 949, 956 (9th Cir. 1981); Fruchtman, 531 F.2d at 949. The district court correctly denied Ross's motion for reconsideration and an evidentiary hearing is not necessary.

AFFIRMED.