United States of America, Plaintiff-appellee, v. Lavell Rondell Johnson, Defendant-appellant, 978 F.2d 716 (9th Cir. 1992)

MEMORANDUM^** 

Lavell Rondell Johnson, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990), and we affirm.

In May 1985, Johnson was charged with four counts of armed bank robbery in violation of 18 U.S.C. § 2113(a) & (d). Each count also charged Johnson with possession of a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c). On September 3, 1985, pursuant to a plea agreement with the government, Johnson pleaded guilty to Count III of the indictment which alleged both armed robbery and the use of a firearm during the commission of a violent crime. In exchange for Johnson's plea of guilty, the government agreed to dismiss the remaining counts of the indictment.

Johnson contends that he did not knowingly and voluntarily plead guilty to the section 924(c) enhancement. Johnson asserts that he pleaded guilty only because he believed all of the section 924(c) charges would be dismissed pursuant to the plea agreement. These contentions lack merit.

To comport with due process, a guilty plea must be voluntary and intelligent. Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). The defendant must be aware of the nature and elements of the charges against him and the possible punishment he faces. Id. In assessing the voluntariness of a guilty plea, statements made by the defendant contemporaneously with his plea should be accorded great weight. Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986) (citing Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)). "Contentions that in the face of the record are wholly incredible are subject to summary dismissal." Blackledge, 431 U.S. at 74.

In the written plea agreement, Johnson acknowledged that Count III of the indictment involved a 25 year sentence for the armed bank robbery and a 5 year sentence for the section 924(c) firearm charge. Furthermore, during the change of plea proceedings Johnson and his attorney acknowledged that the section 924(c) charge in Count III of the indictment was not being dismissed pursuant to the plea agreement.¹  Moreover, Johnson admitted that he enhanced the underlying crime under section 924(c). Accordingly, the district court properly determined that Johnson's plea was voluntary and intelligent. See Blackledge, 431 U.S. at 74.

Johnson's contention that the district court erred by failing to hold an evidentiary hearing also lacks merit. A district court may deny a section 2255 motion without 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); Bauman v. United States, 692 F.2d 565, 570-71 (9th Cir. 1982). Because Johnson's claim that his plea of guilty was not knowing and voluntary does not state a claim for relief, an evidentiary hearing was not necessary and the district court properly denied the section 2255 motion.

Johnson's contention that the district court erred in denying his request for appointment of counsel also lacks merit. Reviewing for an abuse of discretion, McElyea v. Babbitt, 833 F.2d 196, 199-200 (9th Cir. 1987), we find that the absence of "exceptional circumstances" justified the district court's denial of Johnson's motion for appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).² 

AFFIRMED.