Unpublished Disposition, 915 F.2d 1582 (9th Cir. 1989)

No. 89-56003.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and POOLE, Circuit Judges, and THOMPSON, District Judge.^** 

MEMORANDUM^*** 

Petitioner/Appellant, Andre Williamson ("Williamson") appeals the August 18, 1989, denial of his motion to vacate his sentence following a guilty plea to unarmed robbery and use of a firearm during a crime of violence.

We affirm.

BACKGROUND

Williamson was charged with twelve counts of bank robbery and other related offenses. He pled guilty to four of those counts. Williamson now contends that the district court erred in refusing to vacate his conviction on four grounds: (1) the district court erred in denying the underlying habeas petitions without conducting an evidentiary hearing; (2) the district court lacked jurisdiction to enter a judgment against him because there was no proper indictment; (3) he was denied the right to an impartial sentencing hearing pursuant to Fed. R. Crim. P. 11; and (4) he received ineffective assistance of counsel.

ANALYSIS

We examine Williamson's contentions in the order presented.

(1) Denial of habeas petitions without an evidentiary hearing.

Denial of Williamson's Sec. 2255 motion is reviewed de novo. United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989); United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir. 1988). The district court should conduct an evidentiary hearing into disputed facts unless the claims are frivolous or fail to state a claim for relief. Where the petitioner's allegations, viewed against the record as a whole, are patently frivolous, the motion may be denied. United States v. Schalflander, 743 F.2d 714, 717 (9th Cir. 1984). The petition must be supported by evidentiary facts with sufficient detail to raise substantial issues to warrant a hearing. Seiller v. United States, 544 F.2d 554, 567 (2d Cir. 1975). Examining Williamson's contentions in a light most favorable to him, however, we affirm the district court for the reasons stated below.

(2) District court's jurisdiction to enter a judgment.

Williamson complains that the grand jury failed to return a proper indictment. Indictments are presumed valid if they are regular on their face and were returned by a legally-constituted and unbiased grand jury. United States v. Buffington, 815 F.2d 1292, 1304 (9th Cir. 1987); United States v. Claiborne, 765 F.2d 784, 791 (9th Cir. 1985). Williamson's sole basis for claiming that the grand jury was not legally constituted is his own sworn affidavit that he telephoned the district court clerk and was told that there were no records on the return of his indictment. This claim is conclusory and fails to prove any specific error or misconduct by the grand jury. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).

Although, a prosecutor may not deliberately seek to prejudice the grand jury, Williamson's charges of bias and falsehood are unsupported. There is neither evidence, nor specific assertion, that the indictment issued by the grand jury was fraudulently prepared. Conclusory allegations based on no adequate evidentiary support cannot invalidate a conviction. See Hollis v. United States, 796 F.2d 1043, 1046 (8th Cir. 1986). Additionally, Williamson waived challenges to the propriety of the indictment when he failed to raise such objections before entering his guilty plea. Fed. R. Crim. P. 12(b), 12(f).

Williamson also claims lack of jurisdiction to pass sentence because the banks Williamson robbed were not federally insured. Williamson's sole evidence is a letter from the Federal Home Loan Bank Board indicating that First Federal Savings and Loan Association of Los Angeles is not listed in its files. This letter is insufficient to establish lack of FDIC/FSLIC insurance status. In United States v. Davis, 452 F.2d 577 (9th Cir. 1971), the issue was whether the government was required to prove the bank's deposits were insured by the FDIC as alleged in the indictment. We held that the government did not have to prove insurance by the FDIC because "a plea of guilty admits all averments of fact in the indictment." Id. at 578.

(3) Right to an impartial sentencing hearing pursuant to Fed. R. Crim. P. 11.

Williamson argues that under Fed. R. Crim. P. 11 the district court should have advised him, as a jurisdictional prerequisite, of the insurance status of the banks robbed before accepting a guilty plea. Williamson's argument goes against the record. The indictment specifically stated that the robbed banks were insured by the FDIC. Williamson had notice of this element. Secondly, Williamson admitted in court that he had been advised of the elements of an 18 U.S.C. § 2113 violation before he pled guilty. Williamson was advised of the minimum and maximum penalties involved. The record shows that the district court carefully determined that Williamson's guilty pleas were entered voluntarily and intelligently. In neither of the cases cited by Williamson, Henderson v. Morgan, 426 U.S. 637 (1976), and Sober v. Crist, 644 F.2d 807 (9th Cir. 1981), was there a record showing that the defendant was advised by the court or by his attorney of the criminal elements, nor that the court made any determination that the defendant understood those elements.

(4) Effective assistance of counsel.

Williamson asserts that his Sixth Amendment right to counsel was violated because his counsel "allowed the court to impose an illegal sentence" and did not provide Williamson with accurate information. Specifically, Williamson argues that without pleading guilty to count 7 (robbery with use of a gun) he could not plead guilty to count 8 (possession and use of that gun in the commission of the robbery) because 7 and 8 were dependent upon each other. We find no basis for this argument. None of Williamson's case citations support his claims and we find no authority supporting his position. In fact, United States v. Dawson supports the government's position by analogy, holding that a judge may dismiss a portion of the indictment without affecting the validity of the remainder. United States v. Dawson, 516 F.2d 796, 804 (9th Cir. 1975).

The two-part standard for evaluating ineffective assistance of counsel claims is set out in Strickland v. Washington, 466 U.S. 668, 687-694 (1984). The test requires Williamson to show (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. The second part of this test requires Williamson to show that, but for his counsel's errors, Williamson would not have pled guilty and would have insisted on going to trial. Hill v. Lockart, 474 U.S. 52, 59 (1985).

Williamson has failed to show that any part of his sentence was improper or illegal. There is no basis to his argument that his attorney should have objected to his sentence. Regarding Williamson's argument that his counsel failed to object to the district court's statement that there could be no appeal from a guilty plea, Williamson has suggested no issue from which he might have appealed if he had been advised differently.

Nor has Williamson shown that he would have insisted on going to trial, but for his attorney's actions. Had he gone to trial, he would have faced a maximum sentence of over 190 years. The plea of guilty to counts 1, 3, 6, and 8, substantially reduced Williamson's exposure to imprisonment from a possible 190 years to 65 years.

AFFIRMED.