USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2123
KENNETH BARTLETT,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, Senior U.S. District Judge]
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Before
Torruella, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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Kenneth Bartlett on brief pro se.
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Donald K. Stern, United States Attorney, and Thomas C. Frongillo,
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Assistant United States Attorney, on brief for appellee.
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May 30, 1996
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Per Curiam. Petitioner Kenneth Bartlett appeals
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from the district court's summary denial of his motion
pursuant to 28 U.S.C. 2255. We affirm for the reasons
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given in the district court's Memorandum and Order dated June
20, 1995.
We add the following comments concerning the
district court's failure to hold an evidentiary hearing to
address petitioner's claim that he was induced to plead
guilty by his attorney's assurance that he would serve only
17 years. Essentially, petitioner's argument is that
counsel's ineffective assistance in promising him a
particular sentence if he pled guilty, rendered his plea
involuntary.
"An evidentiary hearing is required if the records
and files in the case, or an expanded record, cannot
conclusively resolve substantial issues of material fact,
'and when the allegations made, if true, would require
relief.'" United States v. Butt, 731 F.2d 75, 78 (1st Cir.
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1984). "Ineffective assistance of counsel may undermine the
voluntariness of a guilty plea by the defendant." Panzardi-
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Alvarez v. United States, 879 F.2d 975, 982 (1st Cir. 1989)
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(citing Hill v. Lockhart, 474 U.S. 52, 56 (1985)), cert.
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denied, 493 U.S. 1082 (1990). The two-prong inquiry
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developed in Strickland v. Washington, 466 U.S. 668 (1984),
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applies in this context. Therefore, to obtain relief on his
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ineffective assistance claim, Bartlett is required to show
that counsel's assistance fell below an objective standard of
reasonableness, and that there is a "reasonable probability
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that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial." Hill, 474
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U.S. at 59.
Petitioner was not entitled to an evidentiary
hearing because he failed adequately to allege prejudice.
Our opinion in United States v. LaBonte, 70 F.3d 1396 (1st
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Cir. 1995), is instructive. In Labonte, we affirmed the
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district court's summary dismissal of a 2255 petition
alleging ineffective assistance of counsel. One of the
grounds for denial of the petition was its "fail[ure]
adequately to allege any cognizable prejudice." Id. at 1413.
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In his brief, the appellant had contended "that his trial
attorney assured him that his sentence would be no more than
eighteen months, and that there was simply 'no way' that he
would be sentenced as a career offender pursuant to U.S.S.G.
4B1.1." Id. In fact, the district court had sentenced
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appellant as a career offender and imposed a 262-month
sentence.
In finding that appellant had failed adequately to
allege prejudice, we ruled as follows:
An attorney's inaccurate prediction of
his client's probable sentence, standing
alone, will not satisfy the prejudice
prong of the ineffective assistance test.
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Similarly, [appellant's] self-serving
statements that, but for his counsel's
inadequate advice he would have pleaded
not guilty, unaccompanied by either a
claim of innocence or the articulation of
any plausible defense that he could have
raised had he opted for a trial, is
insufficient to demonstrate the required
prejudice.
LaBonte, 70 F.3d at 1413.
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In this case, as in LaBonte, the attorney's alleged
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assurance that petitioner would receive a 17-year sentence
does not satisfy the prejudice prong of the ineffective
assistance test. Similarly, petitioner's bare allegation
that his guilty plea "was based on counsel's ineffective
advice," is also insufficient to allege prejudice.
Petitioner has never claimed innocence or articulated any
defense that he could have raised if he had gone to trial.
Therefore, petitioner has failed adequately to allege
prejudice. "[A] failure of proof on either prong of the
Strickland test defeats an ineffective-assistance-of-counsel
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claim." Id. at 1413-14. The district court did not err in
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failing to hold an evidentiary hearing because, even if
petitioner's allegations are accepted as true, he is not
entitled to relief.
The summary dismissal of petitioner's 2255
petition is affirmed.
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