United States v. Jose Luis Alvarado

FILED
NOT FOR PUBLICATION APR 11 2011

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. 10-16337

Plaintiff - Appellee, D.C. Nos. 3:08-cv-04557-CRB
3:01-cr-00419-CRB
v.

JOSE LUIS MEDINA ALVARADO, MEMORANDUM *

Defendant - Appellant.

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding

Submitted April 5, 2011 **

Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

Federal prisoner Jose Luis Medina Alvarado appeals pro se from the district

court’s order denying his 28 U.S.C. § 2255 habeas motion. We have jurisdiction

under 28 U.S.C. § 2253, and we affirm.

Alvarado contends that his trial counsel was ineffective for failing accurately

*
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).
to advise him of his potential sentence if he was to plead guilty. As the district

court noted, no plea offer was extended to Alvarado, and the sentence he received

was close to, if not identical to, the Guidelines sentence that would have resulted

from a plea. Accordingly, Alvarado cannot demonstrate prejudice because he has

failed to show that there was a reasonable probability that the result of the

proceeding would have been different. See Strickland v. Washington, 466 U.S.

668, 693-94 (1984); see also United States v. Blaylock, 20 F.3d 1458, 1466-67 (9th

Cir. 1994). The district court did not abuse its discretion by concluding that an

evidentiary hearing was not necessary to resolve this claim. See Frazer v. United

States, 18 F.3d 778, 781 (9th Cir. 1994).

We construe Alvarado’s additional arguments as a motion to expand the

certificate of appealability. So construed, the motion is denied. See 9th Cir. R.

22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per

curiam).

AFFIRMED.

2 10-16337