United States v. Sergio Cisneros , 361 F. App'x 847 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-35377
Plaintiff - Appellee, D.C. Nos. 2:07-cv-03043-WFN
2:03-cr-02193-WFN
v.
SERGIO MANUEL CISNEROS, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Federal prisoner Sergio Manuel Cisneros appeals from the district court’s
order denying his motion for relief under 28 U.S.C. § 2255. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
EOH/Research
Cisneros contends that counsel was ineffective for failing to inform him
about the government’s plea offer. The district court’s determination that counsel
discussed the plea agreement with Cisneros was not clearly erroneous. See United
States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004). Accordingly, Cisneros has
failed to show deficient performance or prejudice. See Strickland v. Washington,
466 U.S. 668, 687 (1984); United States v. Blaylock, 20 F.3d 1458, 1466 (9th Cir.
1994).
Cisneros next contends that counsel was ineffective for failing to
communicate with Cisneros about his case, rendering it impossible for him to make
an intelligent decision regarding the plea offer. The district court found that
counsel discussed the plea offer with Cisneros, informed Cisneros of the risks of
rejecting it, and discussed the strength of the government’s case with Cisneros.
Counsel’s communication with Cisneros did not fall outside “the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689.
In any event, because Cisneros refused at the time to consider the
government’s offer, he has failed to demonstrate a reasonable probability that he
would have timely accepted the government’s offer. See Hill v. Lockhart, 474 U.S.
52, 59–60 (1985); see also Jones v. Wood, 114 F.3d 1002, 1012 (9th Cir. 1997)
EOH/Research 2 08-35377
(finding no prejudice where there was no “reasonable probability that at the time of
the offer” the petitioner would have accepted government’s plea offer).
AFFIRMED.
EOH/Research 3 08-35377