United States v. Burdeau ( 2003 )

MEMORANDUM ^*

Herbert Louis Burdeau appeals the district court’s dismissal of his 28 U.S.C. § 2255 federal habeas petition. We review de novo and affirm.¹

Burdeau claims his attorney provided ineffective assistance of counsel by conveying to Burdeau the idea that he would receive a ten-year sentence if he went to trial, causing Burdeau to withdraw his plea.² Under Strickland v. Washington,³ Burdeau must show that his attorney’s performance was deficient and that the deficient performance prejudiced him.

As in United States v. Thornton,⁴ the district court advised Burdeau that a maximum sentence under the Sentencing Guidelines was possible, “thus rendering any advice given by [Burdeauj’s counsel, even if erroneous, non-prejudicial.”⁵ Therefore, even if Burdeau’s version of the hallway conversation were true, he does not state a claim of ineffective assistance.

“Where a section 2255 motion is based on alleged occurrences outside the record, no hearing is required if the allegations, viewed against the record ... fail to state a claim for relief....”⁶ The district court did not err in dismissing the habeas petition without holding an evidentiary hearing.

AFFIRMED.

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . United. States v. Ratigan, 351 F.3d 957 (9th Cir.2003).

2 . The 17.5-year sentence Burdeau received after a jury trial was affirmed on direct appeal. United States v. Burdeau, 168 F.3d 352 (9th Cir.1999).

3 . Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

4 . United States v. Thornton, 23 F.3d 1532, 1533-34 (9th Cir.1994) (per curiam).

5 . Id. at 1534.

6 . Shah v. United States, 878 F.2d 1156, 1158 (9th Cir.1989) (internal quotation marks and citations omitted); cf. Machibroda v. United States, 368 U.S. 487, 494-96, 82 S.Ct. 510, 7 L.Ed.2d 473 (requiring an evidentiary hearing because the petitioner was "clearly entitled to relief” if the allegations were true).