Unpublished Disposition, 902 F.2d 41 (9th Cir. 1990)

MEMORANDUM^** 

The district court denied as untimely petitioner's 28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence. The district court erred in dismissing the petition without making a finding of prejudice to the government. See Rule 9(a), 28 U.S.C. foll. Sec. 2255; Aiken v. Spalding, 684 F.2d 632, 634 (9th Cir. 1982), cert. denied, 460 U.S. 1093 (1983). We nevertheless affirm because petitioner's substantive claims lack merit. See Dunne v. Henman, 875 F.2d 244, 247 (9th Cir. 1989) (we may affirm the district court on any basis supported by the record). Murolo failed to show either that his counsel was ineffective or that his guilty plea was involuntary.

1. Petitioner claims he was denied effective assistance of counsel because his attorney was "associated" with his wife's counsel and both attorneys convinced him to plead guilty so that his wife would avoid a prison sentence. To show ineffective assistance of counsel, a defendant must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986). The mere possibility of a conflict of interest will not establish ineffective assistance where defendant did not object to joint representation before the trial court; rather, the defendant must show that an actual conflict affected his attorney's performance. Cuyler v. Sullivan, 446 U.S. 335, 349-350 (1980).

Even if the relationship between the two attorneys somehow amounted to a conflict of interest, Murolo still benefited from the plea arrangement because the prosecution dropped one count of his indictment and he received a sentence well below what he might have received after a trial. Consequently, he cannot show that his counsel's performance was inadequate. See United States v. Sutton, 794 F.2d 1415, 1419-22 (9th Cir. 1986).

2. Murolo also claims that he was denied effective assistance because his attorney gave inaccurate advice about the potential for state prosecution and the possible state penalties. However, Murolo showed only that counsel erred by telling him that he could have received two terms of 25 years to life, when in fact he faced only one. Mere inaccurate predictions about the likely outcome of a case and the possible effects of going to trial do not themselves constitute ineffective assistance. Iaea, 800 F.2d at 865. A defendant must show a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id.

Until this appeal, Murolo did not raise the claim that he would have chosen to go to trial. He alleged no facts in his habeas petition that would support such a claim. The error he did allege does not support his contention, because even a single potential sentence of 25 years to life poses much greater exposure than the five-year sentence he received under the plea arrangement. Thus, Murolo's petition did not show a reasonable probability that he would have behaved differently in the absence of counsel's mistake. See Hill v. Lockhart, 474 U.S. 52, 58-60 (1985).

3. Finally, Murolo contends that his guilty plea was coerced by the government's threat to indict his wife on additional charges if he did not plead guilty. However, Murolo's wife was an indicted codefendant already facing serious felony charges and the possibility of imprisonment. At the sentencing hearing, Murolo stated affirmatively that his plea was voluntary and not undertaken to help any other person. R.T. at 15. The district court is entitled to credit defendant's sworn statements at sentencing, United States v. Hoyos, 868 F.2d 1131, 1142 (9th Cir. 1989), and Murolo did not set forth any facts to prove that his plea was not knowing and voluntary. Therefore, he has failed to meet the burden of showing that his plea should be set aside. See Sutton, 794 F.2d at 1422.

The district court may decline to hold an evidentiary hearing on the merits of a section 2255 motion if the motion, files and records of the case conclusively show that the prisoner is not entitled to relief. 28 U.S.C. § 2255. Because Murolo failed to state a claim for relief, the district court did not err by refusing to hold a hearing. Chua Han Mow v. United States, 730 F.2d 1308, 1314 (9th Cir. 1984), cert. denied, 470 U.S. 1031 (1985).

AFFIRMED.