Shah v. U.S.

• Decision Date: 26 June 1989
• Docket Number: No. 87-6382,87-6382
• Citation: 878 F.2d 1156
• Parties: Ramee Jamal SHAH, aka: Eddie Harris, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1156

878 F.2d 1156

Ramee Jamal SHAH, aka: Eddie Harris, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 87-6382.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 6, 1989.

Decided June 26, 1989.

Phillip I. Bronson, Sherman Oaks, Cal., for petitioner-appellant.

Thomas A. Hagemann, Asst. U.S. Atty., Los Angeles, Cal., for respondent-appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, FARRIS and BEEZER, Circuit Judges.

WALLACE, Circuit Judge:

Shah, a federal prisoner, appeals from the denial of his 28 U.S.C. Sec. 2255 motion to vacate his sentence. Shah's principal contention is that the district court erred by failing to grant an evidentiary hearing on his ineffective assistance of counsel claims. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Secs. 1291, 2253. We affirm in part, and reverse and remand in part.

I

On May 5, 1986, Shah pleaded guilty in the district court to conspiracy to distribute and to possess with intent to distribute heroin in violation of 21 U.S.C. Secs. 841, 846. On July 1, 1986, the court sentenced Shah to 12 years' imprisonment, and a $50.00 special assessment pursuant to 18 U.S.C. Sec. 3013. On October 16, 1986, Shah filed a motion to modify his sentence pursuant to Fed.R.Crim.P. 35. After hearing argument on December 29, 1986, the court denied Shah's motion.

On May 19, 1987, Shah filed a motion to vacate and set aside his sentence pursuant to 28 U.S.C. Sec. 2255. Shah's motion raised five grounds, three of which were summarily dismissed by the court as frivolous. This action is not challenged on appeal. In the remaining claims, Shah alleged first that he received ineffective assistance of counsel which rendered his guilty plea unknowing and involuntary, and second that the court gave him no chance at sentencing to contest the number of his previous felonies. The court ordered the government to respond to Shah's surviving claims. The government did so and the court entered an order denying the section 2255 motion. The district court subsequently denied Shah's Fed.R.Civ.P. Rule 59 motion to reconsider the order denying his section 2255 motion and this timely appeal followed.

On appeal, Shah renews his claims that ineffective assistance made his plea unknowing and involuntary and that he was deprived of the opportunity to contest the number of prior felonies. Shah also contends that the court improperly dismissed his section 2255 claim that the government did not provide adequate time for examination of the presentence report, and that the court failed to rule on his motion to strike an affidavit included in the government's response to his section 2255 motion. We review the denial of a section 2255 petition independently. Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987).

II

In challenging a guilty plea for ineffective assistance of counsel, a defendant must demonstrate "both that his counsel's performance was deficient and that the deficient performance prejudiced his defense." United States v. Signori, 844 F.2d 635, 638 (9th Cir.1988) (Signori ). "The longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' " Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) (Hill ), quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). "A defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases." Signori, 844 F.2d at 638; see Hill, 474 U.S. at 56-57, 106 S.Ct. at 369-70, citing McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970) (McMann ).

Ineffectiveness of counsel is a mixed question of fact and law reviewed independently. Signori, 844 F.2d at 638. We likewise review independently the determination of voluntariness. Id.

The court denied Shah's section 2255 motion without conducting an evidentiary hearing. Under section 2255, such a hearing must be granted "[u]nless the motion and the files and record of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. Sec. 2255. The court here considered, and rejected, the need to hold an evidentiary hearing even though Shah's papers requesting a hearing did not reach the district judge until he had already ruled on his section 2255 motion.

Where a section 2255 motion is based on alleged occurrences outside the record, no hearing is required if the allegations, "viewed against the record, either fail to state a claim for relief or are 'so palpably incredible or patently frivolous as to warrant summary dismissal.' " Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985) (Marrow ), quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1772, 84 L.Ed.2d 832 (1985); see also Watts v. United States, 841 F.2d 275, 277 (9th Cir.1988) (Watts ); Baumann v. United States, 692 F.2d 565, 571 (9th Cir.1982) (Baumann ).

Where section 2255 motions have been based on alleged occurrences outside the record, we have often held that an evidentiary hearing was required. E.g., United States v. Burrows, 872 F.2d 915, 917 (9th Cir.1989) (Burrows ); Marrow, 772 F.2d at 527; 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). Indeed, an evidentiary hearing may be required in spite of "the barrier of the plea or sentencing procedure record [which], although imposing, is not invariably insurmountable." Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977) (Allison ) (footnote omitted). Because Shah's present allegations about his conversations with defense counsel contradict Shah's previous statements in court, his credibility must be assessed. We have recognized that where the issue of credibility can be " 'conclusively decided on the basis of documentary testimony and evidence in the record,' " no evidentiary hearing is required. United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir.1989) (Espinoza ), quoting Watts, 841 F.2d at 277.

We have also held that rather than conduct a hearing, courts may use discovery or documentary evidence to expand the record. Watts, 841 F.2d at 277. The Section 2255 Rules, as well as case law, make clear the availability of this option. See id.; Section 2255 Rules, Rules 6-7; Allison, 431 U.S. at 81-83, 97 S.Ct. at 1632-34; Farrow v. United States, 580 F.2d 1339, 1352-53 (9th Cir.1978) (en banc) (Farrow ). In addition, judges may use their own notes and recollections of the plea hearing and sentencing process to supplement the record. Burrows, 872 F.2d at 917; Watts, 841 F.2d at 277; Abatino v. United States, 750 F.2d 1442, 1444 (9th Cir.1985); Farrow, 580 F.2d at 1352. Judges may also use common sense. Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962) (Machibroda ).

Section 2255 requires only that the district court give a claim " 'careful consideration and plenary processing, including full opportunity for presentation of the relevant facts.' " Watts, 841 F.2d at 277, quoting Allison, 431 U.S. at 82-83, 97 S.Ct. at 1633-34. We entrust the choice of method to the court's discretion. Id., citing Machibroda, 368 U.S. at 495, 82 S.Ct. at 514.

Shah's ineffective assistance claim has three components. First, Shah alleges that his defense counsel told him that if he pleaded guilty, the court would not consider his prior criminal record. Second, he asserts that his defense counsel warned him that if he refused a plea bargain and went to trial, the jury would convict him based on his prior record alone and he would receive a harsher sentence. Third, he alleges that after pleading guilty but before receiving any sentence, he told counsel that because the judge was likely to impose a strict sentence he wanted to withdraw his plea. Shah states that defense counsel told him that he could not withdraw his plea.

A.

We first consider Shah's claim that his defense counsel informed him that if he pleaded guilty, the court would not consider Shah's prior convictions in sentencing. The district court characterized this allegation as "patently frivolous and totally incredible."

Several parts of the record, in combination, demonstrate that Shah failed in his burden to prove ineffectiveness. First, at his Rule 11 plea hearing on May 5, 1986, Shah stated under oath that he understood that no promises had been made by the government except that the government would move to dismiss the remaining counts against him. Shah expressly stated that he did not believe that he had any other agreements with the government. Shah was told by the district judge that he would determine the sentence after considering a probation report which would include information about his background. The judge specifically told Shah that he would "have to look at [Shah's] record and make up [his] own mind." Furthermore, Shah stated that he was pleading guilty because and only because he was guilty, that he had had ample opportunity to consult with counsel, and that he was satisfied with his representation.

Second, at the July 1, 1986, sentencing hearing, the district judge firmly and repeatedly indicated to Shah that he had considered his past record and that this record merited a stiff sentence. When asked what he would like to tell the court, Shah said nothing about any alleged agreement that the court would ignore his lengthy criminal history in sentencing. Instead, Shah acknowledged his long criminal record, which he attributed to his narcotics addiction, and sought...