Bartlett v. United States ( 1996 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 95-2123





                                  KENNETH BARTLETT,



                                Petitioner, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                Respondent, Appellee.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                [Hon. Walter Jay Skinner, Senior U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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            Kenneth Bartlett on brief pro se.
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            Donald K. Stern, United States Attorney, and Thomas C. Frongillo,
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        Assistant United States Attorney, on brief for appellee.





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                                     May 30, 1996

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                      Per  Curiam.   Petitioner Kenneth  Bartlett appeals
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            from  the  district  court's  summary denial  of  his  motion



            pursuant to  28 U.S.C.    2255.   We  affirm for  the reasons
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            given in the district court's Memorandum and Order dated June



            20, 1995.



                      We  add  the   following  comments  concerning  the



            district court's  failure to  hold an evidentiary  hearing to



            address  petitioner's  claim that  he  was  induced to  plead



            guilty by his attorney's  assurance that he would serve  only



            17  years.    Essentially,  petitioner's  argument  is   that



            counsel's  ineffective   assistance   in  promising   him   a



            particular  sentence if  he  pled guilty,  rendered his  plea



            involuntary.



                      "An evidentiary hearing is  required if the records



            and  files  in  the  case,  or  an  expanded  record,  cannot



            conclusively  resolve  substantial issues  of  material fact,



            'and  when  the  allegations  made, if  true,  would  require



            relief.'"  United  States v. Butt, 731 F.2d  75, 78 (1st Cir.
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            1984). "Ineffective assistance of  counsel may undermine  the



            voluntariness of  a guilty plea by  the defendant." Panzardi-
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            Alvarez v. United States,  879 F.2d 975, 982 (1st  Cir. 1989)
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            (citing Hill  v. Lockhart,  474  U.S. 52,  56 (1985)),  cert.
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            denied,  493  U.S.  1082   (1990).    The  two-prong  inquiry
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            developed in  Strickland v. Washington, 466  U.S. 668 (1984),
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            applies  in this context.  Therefore, to obtain relief on his







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            ineffective assistance claim,  Bartlett is  required to  show



            that counsel's assistance fell below an objective standard of



            reasonableness, and  that there is  a "reasonable probability
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            that,  but for  counsel's errors, he  would not  have pleaded



            guilty  and would have insisted on going to trial." Hill, 474
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            U.S. at 59.



                      Petitioner  was  not  entitled  to  an  evidentiary



            hearing  because  he failed  adequately to  allege prejudice.



            Our  opinion in United States  v. LaBonte, 70  F.3d 1396 (1st
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            Cir.  1995),  is instructive.   In  Labonte, we  affirmed the
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            district  court's  summary dismissal  of  a    2255  petition



            alleging  ineffective  assistance of  counsel.    One of  the



            grounds  for  denial  of  the  petition  was  its  "fail[ure]



            adequately to allege any  cognizable prejudice." Id. at 1413.
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            In his  brief, the appellant  had contended  "that his  trial



            attorney  assured him that his sentence would be no more than



            eighteen months, and that  there was simply 'no way'  that he



            would be  sentenced as a career offender pursuant to U.S.S.G.



               4B1.1." Id.   In  fact, the  district court  had sentenced
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            appellant  as  a  career  offender and  imposed  a  262-month



            sentence.



                      In finding that appellant had  failed adequately to



            allege prejudice, we ruled as follows:



                      An  attorney's  inaccurate prediction  of

                      his client's  probable sentence, standing

                      alone,  will  not  satisfy the  prejudice

                      prong of the ineffective assistance test.





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                      Similarly,   [appellant's]   self-serving

                      statements  that,  but for  his counsel's

                      inadequate advice he  would have  pleaded

                      not  guilty,  unaccompanied  by either  a

                      claim of innocence or the articulation of

                      any plausible defense that he  could have

                      raised had  he  opted  for  a  trial,  is

                      insufficient to  demonstrate the required

                      prejudice.



            LaBonte, 70 F.3d at 1413.
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                      In this case, as in LaBonte, the attorney's alleged
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            assurance that petitioner  would receive  a 17-year  sentence



            does  not  satisfy the  prejudice  prong  of the  ineffective



            assistance  test.   Similarly,  petitioner's  bare allegation



            that  his guilty  plea  "was based  on counsel's  ineffective



            advice,"   is   also   insufficient  to   allege   prejudice.



            Petitioner  has never  claimed innocence  or articulated  any



            defense that  he could have raised  if he had gone  to trial.



            Therefore,  petitioner   has  failed  adequately   to  allege



            prejudice.   "[A]  failure of  proof on  either prong  of the



            Strickland test  defeats an ineffective-assistance-of-counsel
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            claim."  Id.  at 1413-14.  The district court  did not err in
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            failing  to  hold an  evidentiary  hearing  because, even  if



            petitioner's  allegations are  accepted  as true,  he is  not



            entitled to relief.



                      The   summary  dismissal  of  petitioner's     2255



            petition is affirmed.
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