IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-40953
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GERARDO A URREGO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(C-94-CV-395)
_________________________________________________________________
September 12, 1997
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Gerardo Urrego filed a motion in the district court
pursuant to 28 U.S.C. § 2255 to vacate his federal prison
sentence. Urrego appeals the district court’s denial of his
motion without an evidentiary hearing. We affirm.
I. FACTS AND PROCEDURAL HISTORY
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Gerardo A. Urrego and his codefendants were tried before a
jury and convicted of possession with intent to distribute
approximately 47 kilograms of cocaine and conspiracy to possess
with intent to distribute cocaine in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), and 846. Urrego was sentenced to 292
months of imprisonment and 10 years of supervised release.
Urrego appealed his conviction arguing that the evidence was
insufficient to sustain the jury’s verdict, that the district
court erred in impaneling the jury, and that he was denied his
right to due process because his motion to dismiss based on
outrageous government conduct was denied. This court affirmed
Urrego’s conviction. See United States v. Ornelas-Rodriguez, 12
F.3d 1339 (5th Cir.), cert. denied, 512 U.S. 1222 (1994).
In 1994, Urrego filed a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255 alleging, inter alia, that he
received ineffective assistance of counsel because Arnold S.
Cohn, his trial attorney, failed to inform him of a plea offer
from the Government. The Government filed a motion for summary
judgment requesting that the district court deny Urrego’s motion.
Urrego’s response to the Government’s motion included an
affidavit from Cohn. In relevant part, Cohn stated:
Mr. Berg [Assistant United States Attorney] and I had a
conversation concerning a Plea bargain for Mr. Urrego.
He told me that, the remaining defendants, excluding
Cruz and McKinney, were being offered 75% off the
Federal Sentencing Guidelines Minimum Sentence in
exchange for full cooperation with the government
including testimony against Gerardo Urrego. This offer
2
was also made to Mr. Urrego by Mr. Berg. Shortly,
after this offer, 30 minutes maximum, Mr. Berg withdrew
the offer since the other Defendants’ positions were
that they considered themselves innocent, considered
Urrego innocent and refused to testify against him.
Urrego argued that Cohn never informed him that the Government
had offered him this plea, and requested an evidentiary hearing
to support his assertion.
The magistrate judge recommended that the Government’s
motion for summary judgment be granted and that Urrego’s § 2255
motion be denied without an evidentiary hearing. The magistrate
judge, in determining that Cohn’s performance was not deficient,
concluded: “[i]f Petitioner’s trial counsel did not tell
Petitioner of the plea bargain, it was because the plea bargain
was withdrawn.” Subsequently, the district court granted the
Government’s motion for summary judgment, and denied Urrego’s
§ 2255 motion without an evidentiary hearing finding that
“Urrego’s trial counsel adequately informed him about the plea
bargain but he refused to accept it.” On April 4, 1997, this
court granted Urrego a certificate of appealability on the issues
of whether the district court abused its discretion by denying
Urrego’s § 2255 motion without conducting an evidentiary hearing
and whether Urrego demonstrated that he had received ineffective
assistance of counsel.
3
II. STANDARD OF REVIEW
The denial of a motion brought under 28 U.S.C. § 2255
without an evidentiary hearing is reviewed for abuse of
discretion. United States v. Bartholomew, 974 F.2d 39, 41 (5th
Cir. 1992). A petitioner is entitled to an evidentiary hearing
on his motion unless “the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255. If, on the record, it can be
concluded as a matter of law that a defendant cannot prove an
element necessary to establish an ineffective assistance of
counsel claim, then an evidentiary hearing is not necessary.
United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995), cert.
denied, 116 S. Ct. 1056 (1996).
III. DISCUSSION
Urrego claims that he received ineffective assistance of
counsel because Cohn failed to inform him of a plea offer that
the Government made during the middle of his trial and asserts
that the district court erred by ruling on his § 2255 motion
without conducting an evidentiary hearing on this claim.
To prevail on an ineffective assistance of counsel claim, a
movant must show first, “that counsel’s performance was
deficient” and second, “that the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). First, to prove deficient performance, the movant must
4
show that counsel’s actions “fell below an objective standard of
reasonableness.” Id. at 688. Several circuits have held that,
if a defendant can establish that his attorney failed to convey
to him a plea offer from the Government, he has established
counsel’s deficient performance. See United States v. Blaylock,
20 F.3d 1458 (9th Cir. 1994); United States v. Rodriguez
Rodriguez, 929 F.2d 747 (1st Cir. 1991); Johnson v. Duckworth,
793 F.2d 898 (7th Cir. 1986); United States ex rel. Caruso v.
Zelinsky, 689 F.2d 435 (3rd Cir. 1982). In Teague v. Scott, this
court agreed with these circuits and determined that “failing to
inform the defendant of a plea offer could amount to ineffective
assistance of counsel.” 60 F.3d 1167, 1171 (5th Cir. 1995).
Therefore, assuming arguendo that Cohn failed to communicate the
plea offer, Urrego has satisfied the first part of the Strickland
test.
As to the second prong of Strickland, in order to show
prejudice, the movant must demonstrate that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. Here, assuming Urrego had been able
to accept the plea offer described in Cohn’s affidavit, thereby
reducing his sentence by 75%, his resulting sentence would have
been very different from the 292 month sentence he received upon
his conviction. However, while it is unclear whether Cohn
informed Urrego about the plea offer, it is clear from Cohn’s
5
affidavit that the plea offer was contingent on Urrego’s
codefendants agreeing to testify against him. According to
Cohn’s statement, the Government withdrew the plea offer within
approximately 30 minutes of having made the offer because
Urrego’s codefendants maintained their innocence and refused to
testify against him.
In his response to the Government’s motion for summary
judgment, Urrego contends that he heard the prosecutor announce
the 75% off plea deal but did not know what part of the plea
offer applied to him. He further alleges that Cohn changed the
terms of the offer and asked Urrego “do you want to do some hard
time” to which Urrego replied “no.” Regarding his codefendants,
Urrego claims that “all [co]defendants refused the deal because
every one would be pleading to a LIE, to testify against Urrego.”
(emphasis in original). Further, in his motion to file Cohn’s
affidavit in support of this response, Urrego stated that “Mr.
Berg withdrew the offer because all co-defendants refused to
commit perjury in testifying that Urrego was the owner of the
cocaine, as the prosecution wanted.”
In his response to the magistrate judge’s memorandum and
recommendation, discussing the terms of the plea offer, Urrego
maintains “[c]o-defendants had to testify against the petitioner,
and they rejected the offer, they were not willing to commit
perjury.”
6
In his affidavit, filed in support of his § 2255 motion for
evidentiary hearing, Urrego swears that “[Berg] went with the
other codefendants . . . and offered them 2 years if they agreed
to testify against me. They rejected his proposition because
they didn’t know that I was involved in the conspiracy.”
Now, in his appellate brief, Urrego offers the following
version of events:
Mr. Berg made plea offers to the other defendants in
this case. The Appellant requested trial counsel
Arnold S. Cohn to get Appellant some type of plea
bargain. Thereafter, counsel Cohn consulted with the
A.U.S.A. Mr. Berg, and while they were consulting with
each other, the Appellant talked with his co-
defendants. The co-defendants indicated to appellant
that they would take their plea offers as long as
Appellant got a plea bargain. Meanwhile, counsel Cohn
reappeared and asked Appellant if he wanted to do some
hard time. Appellant informed counsel that he did not.
Trial Counsel Cohn said there’s no plea bargain for
you. Thereafter, the Appellant’s co-defendants
rejected their plea bargains based on the assumption
that the government refused to make Appellant a plea
bargain offer.
This novel version of events alleging a deal between Urrego and
his codefendants regarding acceptance or rejection of potential
plea offers is not supported by the record and is contrary to
Urrego’s assertions discussed above, which are contained in the
record.
The Government argues that because the plea offer was
conditioned on acceptance by Urrego’s codefendants, once they
refused their plea offers, the plea offer was withdrawn and there
was nothing to offer Urrego. We agree. This theory is
7
consistent with Cohn’s affidavit and is also supported by
Urrego’s repeated insistence in the record that his codefendants
were unwilling to “commit perjury.” While it was Cohn’s duty to
communicate plea offers to Urrego, his alleged failure to do so
in this case did not prejudice Urrego because the plea offer was
conditioned on terms his codefendants were unwilling to meet.
Therefore we find that Urrego is unable to satisfy the prejudice
element of Strickland.
Because Urrego fails to satisfy an element necessary to
establish an ineffective assistance of counsel claim, an
evidentiary hearing is not necessary. Walker, 68 F.3d at 934.
We agree with the district court that the record shows
conclusively that Urrego is entitled to no relief on his
ineffective assistance of counsel claim. We therefore conclude
that the district court did not abuse its discretion by not
conducting an evidentiary hearing before ruling on Urrego’s
§ 2255 motion.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
denial of Urrego’s § 2255 motion without an evidentiary hearing
and grant of summary judgment in favor of the Government.
8