Unpublished Disposition, 919 F.2d 146 (9th Cir. 1990)

MEMORANDUM^** 

Randall Burnside appeals pro se the district court's dismissal of his petition filed pursuant to 28 U.S.C. § 2254. Burnside contends that his guilty plea was not knowing and voluntary, that assistance of counsel was ineffective, and that the district court erred in not holding an evidentiary hearing on his habeas corpus petition. We affirm.

The district court's denial of a petition for writ of habeas corpus is reviewed de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). Findings of fact underlying the court's conclusions are reviewed for clear error. Id. The district court's denial of an evidentiary hearing is reviewed for abuse of discretion. Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988).

Burnside alleges that his due process rights were violated by the failure of the district court to apprise him of the possibility of consecutive sentencing and a term without parole when he pleaded guilty to a continuing criminal enterprise, 21 U.S.C. § 848, and distribution of a controlled substance, 21 U.S.C. § 841(a) (1). To satisfy the due process requirement that a plea be voluntary and intelligent, the defendant must be informed of the "direct consequences" of the plea; however, it is not necessary to inform the defendant of all "collateral consequences." United States v. Wills, 881 F.2d 823, 825 (9th Cir. 1989).

The imposition of a consecutive sentence is a "collateral consequence" of the plea and failure to forewarn the defendant of the possibility of consecutive sentencing is not a due process violation. Wills, 881 F.2d at 827 (not error to fail to advise defendant of discretionary consecutive sentence since the consequence was collateral). In addition, the trial court is not required to notify the defendant of parole eligibility before accepting a guilty plea. See United States v. Sanclemente-Bejarano, 861 F.2d 206, 209 (9th Cir. 1988) (holding Rule 11 of the Federal Rules of Criminal Procedure not violated by district court's failure to warn defendant prior to accepting guilty plea of ineligibility for parole). The defendant had appropriately been informed that he faced a possibility of life imprisonment plus thirty years. He was sentenced to only ten years imprisonment. No due process violation occurred.

The failure of counsel to advise the defendant of a collateral consequence of the plea does not fall below the objective standard of competence for a defense attorney. Torrey v. Estelle, 842 F.2d 234, 237 (9th Cir. 1988). Moreover, Burnside has failed to demonstrate prejudice. The assistance of counsel was not ineffective.

Since neither the district court nor the defense counsel was required to inform the defendant of the possibility of consecutive sentencing and a term without parole, an evidentiary hearing regarding facts pertinent to the habeas petition was unnecessary. We find no abuse of discretion in the district court's denial of an evidentiary hearing.

AFFIRMED.