FILED
NOT FOR PUBLICATION NOV 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-56247
Plaintiff - Appellee, D.C. Nos. 3:11-cv-00117-W
3:03-cr-00850-W-3
v.
JOHN HARRELL, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Argued and Submitted November 4, 2013
Pasadena, California
Before: McKEOWN, GOULD, and BYBEE, Circuit Judges.
John Harrell appeals the district court’s denial of an evidentiary hearing on
his motion under 28 U.S.C. § 2255 to vacate his guilty plea to charges of wire
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
fraud, conspiracy to launder money, and money laundering. We have jurisdiction
under 22 U.S.C. § 2253(c) and we affirm the ruling of the district court.1
We review the district court’s denial of an evidentiary hearing for an abuse
of discretion. United States v. Blaylock, 20 F.3d 1458, 1464-65 (9th Cir. 1994).
“To demonstrate that the district court erred in not granting an evidentiary hearing,
(1) [petitioner] must allege specific facts which, if true, would entitle him to relief;
and (2) the petition, files and record of the case cannot conclusively show that he is
entitled to no relief.” United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004).
Harrell first contends that his lawyer did not adequately prepare before
Harrell entered his guilty plea. This argument was properly dismissed without an
evidentiary hearing because Harrell did not point to specific acts that his attorney
at the time should have done and did not establish that he was prejudiced by the
alleged lack of preparation. United States v. Cronic, 466 U.S. 648, 666 (1984);
Hill v. Lockhart, 474 U.S. 52, 58-59 (1985) (holding that where the alleged
ineffectiveness of counsel is a failure to investigate or prepare, prejudice only
results if further investigation “would have led counsel to change his
recommendation as to the plea.”).
1
These arguments were previously rejected on direct appeal by another
panel of this Circuit. United States v. Harrell, 324 Fed. App’x. 668 (9th Cir.
2009).
-2-
Harrell next contends that he was pressured to enter a guilty plea because his
lawyer had a deed of trust on the home where his wife lived. But the record does
not show evidence that he or his wife were pressured in this regard, and his
allegations at this stage are directly contradicted by his testimony during his plea
colloquy that no one had threatened him to induce his plea.
Finally, Harrell contends that his lawyer made promises of a reduced
sentence that led him to plead guilty. Again, the colloquy of his plea contradicts
his current position because he stated under oath that there were no undisclosed
deals inducing him to plead guilty. Further, although Harrell interpreted Jordan’s
statement as a promise of a more formal agreement, Jordan was actually correct in
advising Harrell that he would receive “favorable treatment at sentencing” based
on a guilty plea because the court granted him a two-level adjustment for
acceptance of responsibility in reliance on his plea. Even if the advice were
inaccurate, it was not the kind of particularly egregious sentencing prediction
required to support a claim of ineffective assistance of counsel. United States v.
Keller, 902 F.2d 1391, 1394 (9th Cir. 1990).
The district court made logical and plausible inferences from the record in
determining that Harrell’s claims were not sufficient to warrant an evidentiary
hearing. United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).
-3-
AFFIRMED.
-4-