U.S. v. Rodriguez, 87-2880

• Decision Date: 14 June 1988
• Docket Number: No. 87-2880,87-2880
• Citation: 857 F.2d 1479
• Parties: Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellees, v. Hernando RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1479

857 F.2d 1479

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellees, v. Hernando RODRIGUEZ, Defendant-Appellant.

No. 87-2880.

United States Court of Appeals, Ninth Circuit.

Submitted June 14, 1988 ^*.

Decided Aug. 31, 1988.

Before CHOY, GOODWIN and NORRIS, Circuit Judges.

MEMORANDUM ^**

Hernando Rodriguez ("Rodriguez") appeals pro se and in forma pauperis the district court's denial of his 28 U.S.C. Sec. 2255 petition for writ of habeas corpus seeking to vacate his sentence. Rodriguez argues, inter alia, that the district court 1) erred in denying the petition without first conducting an evidentiary hearing, and 2) failed to comply with Fed.R.Crim.P. 11.

FACTS

On May 28, 1986, a grand jury indicted Rodriguez for possession with intent to distribute one kilogram or more of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A)(ii). On June 25, 1986, the United States Government ("Government") offered a plea agreement in which it promised to make a non-binding recommendation that the court sentence Rodriguez to no more than seven years. On August 4, 1986, on the advice of counsel, Rodriguez pled guilty. The court sentenced him to twelve years.

On June 11, 1987, Rodriguez filed a motion under 28 U.S.C. Sec. 2255 to vacate his sentence. On September 1, 1987, the district court dismissed the petition without a hearing. Rodriguez timely appeals.

We review de novo the denial of a petition under 28 U.S.C. Sec. 2255. United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. dismissed, 107 S.Ct. 16 (1986).

ANALYSIS

Rodriguez contends that the district court erred in denying his motion to vacate sentence without first conducting an evidentiary hearing. Title 28 U.S.C. Sec. 2255 states that "[u]nless the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon." See Quan, 789 F.2d at 715; United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984), cert. denied, 470 U.S. 1058 (1985). No hearing is required if the allegations in the petition, viewed against the record, fail to state a claim for relief or are so patently frivolous to warrant summary dismissal. See Schaflander, 743 F.2d at 717.

Rodriguez argues that his plea was not voluntary because he pled guilty with the understanding that the sentence would not exceed seven years. The plea agreement between Rodriguez and the Government required the Government to make a non-binding sentence recommendation of no more than seven years incarceration. Rule 11(e)(1) outlines three types of plea agreements, one of which requires the Government to "make a recommendation ... for a particular sentence, with the understanding that such recommendation ... shall not be binding upon the court." Fed.R.Crim.P. 11(e)(1)(B). However, if an agreement is reached pursuant to Rule 11(e)(1)(B), the court must "advise the defendant that if the court does not accept the recommendation ... the defendant nevertheless has no right to withdraw the plea." Fed.R.Crim.P. 11(e)(2).

A review of the transcript from the Rule 11 hearing reveals that the court never advised Rodriguez that he had no right to withdraw the plea if the court did not accept the recommendation. Prior to discussion of the plea, the court asked Rodriguez if he understood that the maximum punishment he could impose was a twenty year term of imprisonment. However, this only fulfilled the court's obligation prior to the acceptance of any plea, under Rule 11(c)(1), to advise the defendant of the maximum penalty provided by law. It did not fulfill the court's specific obligation, under Rule 11(e)(2), in conjunction with pleas calling for a government recommendation.

Rodriguez did not directly appeal his conviction and sentence, but instead filed a motion over a year later under 28 U.S.C. Sec. 2255 to vacate his sentence. In this context, deviation from Rule 11 is not per se constitutional error. George v. United States, 633 F.2d 1299, 1300 (9th Cir.1980), cert. denied, 450 U.S. 933 (1981). A defendant who utilizes Sec. 2255 to collaterally attack a guilty plea on the basis of noncompliance with Fed.R.Crim.P. 11 must either establish a constitutional or jurisdictional error, or demonstrate "that the proceeding in which his plea was accepted was 'inconsistent with the rudimentary demands of fair procedure' or resulted in a 'complete miscarriage of justice.' " United States v. Rivera-Ramirez, 715 F.2d 453, 456 (9th Cir.1983) (quoting United States v. Timmreck, 441 U.S. 780, 783-84 (1979)), cert. denied, 467 U.S. 1215 (1984). He must also show prejudice, "in that he was unaware of the consequences of his plea, and, if properly advised, would not have pleaded guilty." United States v. Grewal, 825 F.2d 220, 222 (9th Cir.1987); see also Wacht v. Cardwell, 604 F.2d 1245, 1247 (9th Cir.1979).

Rodriguez alleged that he pled guilty "with the understanding" that the sentence would not exceed seven years. He also argues that he understood the court's acceptance of the plea to constitute acceptance of the recommendation. In order for a plea to be considered voluntary and intelligent, the defendant must be fully aware of its direct consequences. S...