DocketNumber： 95-2123
Filed Date： 5/30/1996
Status： Precedential
Modified Date： 9/21/2015
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2123
KENNETH BARTLETT,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, Senior U.S. District Judge] __________________________
____________________
Before
Torruella, Chief Judge, ___________
Cyr and Stahl, Circuit Judges. ______________
____________________
Kenneth Bartlett on brief pro se. ________________
Donald K. Stern, United States Attorney, and Thomas C. Frongillo, _______________ ___________________
Assistant United States Attorney, on brief for appellee.
____________________
May 30, 1996
____________________
Per Curiam. Petitioner Kenneth Bartlett appeals ___________
from the district court's summary denial of his motion
pursuant to 28 U.S.C. 2255. We affirm for the reasons ______
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. ______________ ____
1984). "Ineffective assistance of counsel may undermine the
voluntariness of a guilty plea by the defendant." Panzardi- _________
Alvarez v. United States, 879 F.2d 975, 982 (1st Cir. 1989) _______ _____________
(citing Hill v. Lockhart, 474 U.S. 52, 56 (1985)), cert. ____ ________ _____
denied, 493 U.S. 1082 (1990). The two-prong inquiry ______
developed in Strickland v. Washington, 466 U.S. 668 (1984), __________ __________
applies in this context. Therefore, to obtain relief on his
-2-
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 ___
that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial." Hill, 474 ____
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 _____________ _______
Cir. 1995), is instructive. In Labonte, we affirmed the _______
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. ___
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 ___
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.
-3-
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. _______
In this case, as in LaBonte, the attorney's alleged _______
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 __________
claim." Id. at 1413-14. The district court did not err in ___
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. ________
-4-
united-states-v-george-labonte-united-states-of-america-v-david-e , 70 F.3d 1396 ( 1995 )
Jose E. Panzardi-Alvarez v. United States , 879 F.2d 975 ( 1989 )
United States v. Mohammed Y. Butt , 731 F.2d 75 ( 1984 )
Hill v. Lockhart , 106 S. Ct. 366 ( 1985 )