Unpublished Disposition, 940 F.2d 668 (9th Cir. 1991)

MEMORANDUM^** 

Frederick G. Land, a Nevada state prisoner, appeals pro se the district court's denial of his habeas corpus petition under 28 U.S.C. § 2254. Land pleaded guilty to three counts of attempted sexual assault and was sentenced to three consecutive 20-year terms of imprisonment. He claimed in his habeas petition, and contends on appeal, that (1) he received ineffective assistance of counsel at trial, (2) his guilty plea was involuntary, and (3) his sentence was disproportionate to the offenses in violation of the eighth amendment.¹  We have jurisdiction under 28 U.S.C. § 2253. We review de novo, Evans v. Lewis, 855 F.2d 631, 633 (9th Cir. 1988), and affirm.

* Ineffective Assistance of Counsel

Land contends that his trial attorney Robert Amundson was ineffective because he provided insufficient information regarding Land's guilty plea and told Land he would receive probation, and that this promise convinced Land to plead guilty. Land also contends that Amundson was ineffective because he told the sentencing judge that Land should not receive probation and because he did not conduct any pretrial investigation.

To establish ineffective assistance of counsel, a defendant must establish that his attorney's performance was deficient and that the deficiency prejudiced his defense. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney's tactical decisions are essentially unreviewable. Strickland, 466 U.S. at 690; United States v. Murray, 751 F.2d 1528, 1535 (9th Cir.), cert. denied, 474 U.S. 979 (1985). To show that a guilty plea was not voluntary and intelligent, a defendant must show that counsel's advice as to the consequences of the plea was not within the range of competence demanded of criminal attorneys. Hill, 474 U.S. at 56. A defendant's statements made in open court at the time of his plea are entitled to great weight. Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986).

Here, at Land's state habeas hearing, Amundson testified that he told Land he might receive probation but a prison term was likely. Land admitted during his own testimony that Amundson had explained the likelihood of a prison term. Additionally, Land stated at his plea hearing that his plea was voluntary and that he understood that any grant of probation was within the sentencing court's discretion. Accordingly, the district court did not err by denying Land's claim that counsel provided insufficient or misleading information about the possible sentence. See Hill, 474 U.S. at 56.

Amundson also testified that his objective at sentencing was to minimize the length of Land's prison term. Thus, his statement that Land should not receive probation was a tactical decision. Accordingly, the district court properly denied Land's claim based on Amundson's actions at the sentencing hearing. See Strickland, 446 U.S. at 690; Murray, 751 F.2d at 1535.

Finally, Amundson testified that he conducted background checks of the three victims. Accordingly, Land did not establish that Amundson's performance was deficient for failure to conduct pretrial investigation. See Strickland, 466 U.S. at 687.

II

Sentence

Land contends that his 60-year sentence was disproportionate to the offenses. This contention lacks merit.

The eighth amendment requires that a sentence be proportionate to the crime for which the defendant is convicted. Solem v. Helm, 463 U.S. 277, 290 (1983). We must grant substantial deference to the broad authority of legislatures to determine punishments for crimes, and to the discretion of sentencing courts. Id. We must consider such objective factors as the gravity of the offense and the harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction, and the sentences imposed for the same crime in other jurisdictions. Id. at 292; United States v. McDougherty, 920 F.2d 569, 576 (9th Cir. 1990), cert. denied, 111 S. Ct. 1119 (1991).

Here, the sentence was harsh. Land was 57 years old at the time of sentencing, and the sentencing court nonetheless imposed the maximum sentence. On the other hand, the offenses were grave. The sentencing court imposed a sentence of 60 years because Land had used his influence to convince 10- and 11-year-old girls to perform sexual acts and had threatened to blow up their homes. Land stated in his habeas petition that his sentence was disproportionate to sentences in the same jurisdiction and in other jurisdictions, but submitted no evidence on this point. Due to the gravity of the offenses, Land's sentence does not shock the conscience. Accordingly, the district court did not err by denying Land's eighth amendment claim. See Solem, 463 U.S. at 290 and 292; McDougherty, 920 F.2d at 576.

AFFIRMED.