United States v. Michael Podmenik ( 1995 )

56 F.3d 75
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Michael PODMENIK, Defendant-Appellant.

No. 94-15891.

United States Court of Appeals, Ninth Circuit.

Submitted May 16, 1995.*
Decided May 19, 1995.

Before: WALLACE, Chief Judge, HUG and NOONAN, Circuit Judges.

1

MEMORANDUM**

2

Michael Podmenik appeals the district court's denial, following an evidentiary hearing, of his motion to set aside his conviction and to vacate his sentence for narcotics convictions pursuant to 28 U.S.C. Sec. 2255. Podmenik contends that the district court failed to "make findings of fact and conclusions of law" as required under 28 U.S.C. Sec. 2255. We have jurisdiction pursuant to 28 U.S.C. Sec. 2255. We affirm.

3

We review the district court's denial of a 28 U.S.C. Sec. 2255 petition de novo and findings of fact for clear error. United States v. Roberts, 5 F.3d 365, 368 (9th Cir. 1993).

4

In his Sec. 2255 motion, Podmenik claimed that he received ineffective assistance of counsel during plea negotiations, which resulted in the imposition of a longer sentence. At the evidentiary hearing, Podmenik's testimony was directly contradicted by the testimony of his former defense counsel.

5

The district court order concisely articulates the court's credibility determination, a factual finding which is given great deference. See Spain v. Rushen, 883 F.2d 712, 733 (9th Cir. 1989), cert. denied, 494 U.S. 910 (1990). In addition, the order clearly states that Podmenik failed to carry the burden in this motion. See United States v. Palomba, 31 F.3d 1456, 1460-61 (9th Cir. 1994) (petitioner has the burden of showing that counsel's deficient performance caused prejudice). Thus, in denying Podmenik's motion, the district court properly made the requisite "factual findings and conclusions of law." See 28 U.S.C. Sec. 2255.

6

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3