Unpublished Disposition, 936 F.2d 577 (9th Cir. 1988)

MEMORANDUM^** 

Ronald J. Dupard, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion. Dupard pleaded guilty in 1987 to one count of conspiracy to distribute cocaine and four counts of distribution of cocaine on the condition that he could appeal certain pretrial motions. We review de novo, United States v. Poopola, 881 F.2d 811, 812 (9th Cir. 1986), and we affirm in part and vacate and remand in part.

Dupard first alleges that his plea agreement is invalid because on direct appeal, this court failed to consider fully his challenges to two pretrial motions: the motion to suppress evidence seized from his car on August 9, 1986 and the motion to dismiss certain counts of the indictment based on allegedly outrageous government conduct. On direct appeal, this court affirmed the district court's denial of these motions. See United States v. Dupard, No. 87-3133, unpublished memorandum disposition (9th Cir. Oct. 19, 1988). Dupard argues, however, that his plea agreement was not fulfilled because this court failed to address in its disposition specific arguments he raised in his brief. Nevertheless, this court, in affirming the district court's denial of the motions, addressed the merits of Dupard's arguments. Id.

Dupard next alleges that his plea is invalid because his counsel did not move to suppress evidence seized on November 14, 1984 on the ground that the search warrants were overbroad.¹ 

To demonstrate ineffective assistance of counsel, a defendant must show that the counsel's performance fell below an objective standard of reasonableness and that the conduct prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Conduct falls below an objective standard of reasonableness when "counsel made errors so serious that the counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. There is a strong presumption that counsel's conduct falls within "the wide range of reasonable professional assistance." Id. at 689. To show prejudice from counsel's failure to litigate a fourth amendment claim, the defendant must demonstrate that the claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). In the context of a plea bargain, prejudice is demonstrated if there is a reasonable probability that but for the counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

A district court must hold an evidentiary hearing on a claim of ineffective assistance " [u]nless the motions and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; see also Rule 4(b), Rules Governing Section 2255 Proceedings, 28 U.S.C. foll. Sec. 2255. The district court may deny a section 2255 motion without holding an evidentiary hearing only if the movant's allegations, viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal. Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985).

We cannot evaluate Dupard's challenge based on his attorney's failure to challenge the warrants as overbroad because the district court record does not contain the search warrants executed on November 14, 1984. The district court record contains only page one of the search warrant for the office and the affidavit executed by the government to establish probable cause for the searches. Page one does not contain a description of the items to be seized.²  Accordingly, because the district court record is not sufficiently developed on this issue, we remand so that the district court may obtain the search warrants and evaluate Dupard's claim in the context of the warrants. See Anderson v. Hodel, 899 F.2d 766, 770 (9th Cir. 1990) (remand appropriate when district court record is not sufficiently developed).³ 

AFFIRMED in part and VACATED AND REMANDED in part.