Austin v. Larson

Ninth Circuit

Austin v. Larson

158 F. App'x 61

CourtCourt of Appeals for the Ninth Circuit

DecidedDecember 13, 2005

DocketNo. 04-16599

StatusPublished

This text of 158 F. App'x 61 (Austin v. Larson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Austin v. Larson, 158 F. App'x 61 (9th Cir. 2005).

Pincite

Opinion

MEMORANDUM

*

Petitioner Edward Austin challenges the sentence imposed for his 1985 guilty plea, his second guilty plea in a two-year period. He contends both that his plea was involuntary and that the court violated his plea [62]*62agreement by imposing a sentence that ran consecutively instead of concurrently with his 1983 sentence. We do not give a full recitation of the facts because the parties are already familiar with them.

Austin claims that his plea was involuntary because the trial transcripts and reporter’s notes from his plea hearing cannot be located. This is insufficient to establish that his plea was involuntary. Parke v. Raley, 506 U.S. 20, 30, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992).

Austin also claims that the government violated the terms of his plea agreement by imposing his second sentence consecutively because he reasonably believed that it would run concurrently when he entered his plea. Notably, Austin does not claim that the government ever expressly or implicitly agreed to a concurrent sentence. Moreover, the minutes taken during Austin’s change of plea hearing and the original and amended abstracts of judgment regarding the 1985 plea all suggest that Austin’s second sentence was intended to run consecutively.¹ Thus, the record offers no basis for concluding that Austin reasonably believed that the second sentence would run consecutively when he entered his second plea. See United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979). Accordingly, the district court’s denial of habeas relief is 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.

Free access — add to your briefcase to read the full text and ask questions with AI

MEMORANDUM

*

Petitioner Edward Austin challenges the sentence imposed for his 1985 guilty plea, his second guilty plea in a two-year period. He contends both that his plea was involuntary and that the court violated his plea [62]*62agreement by imposing a sentence that ran consecutively instead of concurrently with his 1983 sentence. We do not give a full recitation of the facts because the parties are already familiar with them.

Austin claims that his plea was involuntary because the trial transcripts and reporter’s notes from his plea hearing cannot be located. This is insufficient to establish that his plea was involuntary. Parke v. Raley, 506 U.S. 20, 30, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992).

Austin also claims that the government violated the terms of his plea agreement by imposing his second sentence consecutively because he reasonably believed that it would run concurrently when he entered his plea. Notably, Austin does not claim that the government ever expressly or implicitly agreed to a concurrent sentence. Moreover, the minutes taken during Austin’s change of plea hearing and the original and amended abstracts of judgment regarding the 1985 plea all suggest that Austin’s second sentence was intended to run consecutively.¹ Thus, the record offers no basis for concluding that Austin reasonably believed that the second sentence would run consecutively when he entered his second plea. See United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979). Accordingly, the district court’s denial of habeas relief is 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.

Cite This Page — Counsel Stack

Bluebook (online)

158 F. App'x 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-larson-ca9-2005.

Opinion

Related

Cite This Page — Counsel Stack