United States v. Espinoza

866 F.2d 1067, 1988 U.S. App. LEXIS 19401, 1988 WL 146589
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 9, 1988
DocketNo. 86-5565
StatusPublished
Cited by66 cases

This text of 866 F.2d 1067 (United States v. Espinoza) 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
United States v. Espinoza, 866 F.2d 1067, 1988 U.S. App. LEXIS 19401, 1988 WL 146589 (9th Cir. 1988).

Opinion

LOVELL, District Judge:

Ruben Espinoza, a federal prisoner, appeals the denial of his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.

FACTS

On December 18, 1981, appellant was arrested for bank robbery and a federal detainer was lodged against him. At the time of his arrest, appellant was on outpatient release status from the California Rehabilitation Center and had another state charge pending against him. The state charge resulted in the issuance of an additional warrant for his arrest for violating the conditions of his release from the Rehabilitation Center. The state proceedings against appellant were concluded when he was sentenced on the release violation on April 2, 1982.

Appellant was indicted by a federal grand jury on July 8,1982, for 15 counts of bank robbery. The indictment charged the commission of 15 separate robberies between November 23, 1981, and December 18, 1981. On October 5, 1982, pursuant to [1069]*1069a plea agreement with the United States, appellant entered pleas of guilty to five counts of the indictment, and the remaining counts were dismissed. Appellant received concurrent ten year sentences on each of the five counts for which he was convicted. Appellant thereafter filed his § 2255 petition, which was denied without an eviden-tiary hearing.

Three issues are raised on appeal:

1. Should appellant’s plea of guilty be set aside on the ground that it was induced by his attorney’s promise that he would receive a specific sentence?

2. Did appellant’s counsel render ineffective assistance by failing to assert the government’s violation of the Interstate Agreement on Detainers Act?

3. Is appellant entitled to credit for time served since the date the federal detainer was lodged?

JURISDICTION AND STANDARD OF REVIEW

This court has jurisdiction by virtue of 28 U.S.C. §§ 2255 and 1291. Denial of a defendant’s § 2255 petition is reviewed de novo. Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987). A district court may not deny a § 2255 motion without a hearing “[ujnless 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; Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985).

DISCUSSION

1. Involuntariness of plea

Appellant claims that he was induced into pleading guilty by his attorney’s promises that she had arranged for him to receive a “split” sentence of five years’ incarceration and five years’ probation.

Both parties agree that the district court questioned appellant, in accordance with Fed.R.Crim.P. 11(d), whether his plea was the result of any promises or threats, and that appellant replied in the negative. Appellant argues, however, that it was his understanding that the sentence agreement had to be made off the record.

Although “ ‘[s]olemn declarations in open court carry a strong presumption of verity,’ ” United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir.), cert. denied, — U.S. -, 108 S.Ct. 107, 98 L.Ed.2d 66 (1987), (citations omitted) this court has held on several occasions that when a prisoner’s allegations of a coerced plea are based on alleged occurrences entirely outside the record, an evidentiary hearing is required. Mayes v. Pickett, 537 F.2d 1080, 1083 (9th Cir.1976), cert. denied, 431 U.S. 924, 97 S.Ct. 2198, 53 L.Ed.2d 238 (1977); Jones v. United States, 384 F.2d 916, 917 (9th Cir.1967); Marrow, 772 F.2d at 527. “[W]ith great reluctance,” this court held in Mayes that even an exemplary Rule 11 record was inadequate to determine the appellant’s claims of involuntariness where he asserted that his attorney made promises regarding his sentence. Mayes, 537 F.2d at 1084.

Mayes was followed nearly a decade later in Marrow, 772 F.2d at 527, in which this court remanded the case for an eviden-tiary hearing to determine whether the appellant’s plea was coerced by threats. Again, the court relied on the fact that the allegations involved matters outside the record of the case, and thus concluded that a hearing was required under § 2255. Id. See also, Iaea v. Sunn, 800 F.2d 861, 866-68 (9th Cir.1986) (§ 2254 case remanded for evidentiary hearing on allegations of plea coercion).1

Without citing Mayes, this court recently held that an evidentiary hearing to receive testimony from the petitioner was not required where the issue of credibility could be “conclusively decided on the basis of documentary testimony and evidence in the record.” Watts v. United States, 841 F.2d 275, 277 (9th Cir.1988). Given the extensive record before the district judge, including inconsistent filings submitted by the [1070]*1070petitioner, the court concluded that the records in the case showed conclusively that petitioner was not entitled to relief, and that the § 2255 motion could be denied without hearing. Id. at 278.

Watts and the cases cited therein evidence an exception to the Mayes rule, obviating the need for an evidentiary hearing where the record is sufficiently developed. The record before the district court in this case was considerably more limited, and we cannot conclude that issues of credibility conclusively may be determined on the existing record. However, the district court may expand the record with other documentary evidence prior to determining the need for an evidentiary hearing. See Rule 7 of the Rules Governing Section 2255 Proceedings in the United States District Courts.

2. Ineffective assistance of counsel

Appellant claims that his attorney rendered ineffective assistance by failing to raise the government’s violation of the Interstate Agreement on Detainers Act (IAD), 18 U.S.C. App. III. To succeed on this claim, appellant must show that counsel’s representation “fell below an objective standard of reasonableness,” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington,

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866 F.2d 1067, 1988 U.S. App. LEXIS 19401, 1988 WL 146589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-espinoza-ca9-1988.