NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                    No. 10-1259
                                   ____________

                         UNITED STATES OF AMERICA

                                          v.

                                 JESSE KENLEY,

                                     Appellant
                                   ____________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                            (D.C. No. 1-06-cr-00009-001)
                    District Judge: Honorable Sylvia H. Rambo
                                   ____________

                            Argued July 14, 2011
            Before: SLOVITER, FUENTES and FISHER, Circuit Judges.

                                (Filed: July 29, 2011)

Michael J. Kelly (Argued)
3007 Devereaux Avenue
Philadelphia, PA 19149
      Counsel for Appellant

William A. Behe (Argued)
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
       Counsel for Appellee
                                   ____________

                              OPINION OF THE COURT
                                      ____________

FISHER, Circuit Judge.

       Jesse Kenley appeals from the District Court’s order denying his petition under 28

U.S.C. § 2255 and refusing to conduct an evidentiary hearing. For the reasons stated

herein, we will affirm.

                                             I.

       We write primarily for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       The underlying facts of this case are set forth in our previous opinion affirming the

District Court’s denial of Kenley’s motion to withdraw his guilty plea, see United States

v. Kenley, 299 Fed. Appx. 184 (3d Cir. 2008), and need not be repeated here. After

Kenley was charged with murder and robbery in state court, he entered into a plea

agreement with federal prosecutors. In lieu of prosecution on the state charges, Kenley

pled guilty to Hobbs Act robbery, conspiracy, and witness tampering, in violation of 18

U.S.C. §§ 1951, 371, and 1512. As contemplated in the plea agreement, the District

Court sentenced Kenley to 420 months’ imprisonment.

       Kenley subsequently filed a petition under 28 U.S.C. § 2255 seeking to vacate his

sentence on the grounds of ineffective assistance of counsel. Specifically, Kenley

claimed that his counsel, Thomas Thornton, was ineffective for failing to advise him that

he would be waiving a viable statute of limitations defense to two of the federal charges

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to which he pled guilty. The District Court summarily denied the petition without

holding an evidentiary hearing, ruling that Kenley’s claims were without any basis.

Kenley timely appealed. We granted a certificate of appealability as to part of Kenley’s

petition, namely, as to whether the District Court erred in ruling that Kenley was not

prejudiced by Thornton’s alleged ineffectiveness and whether the District Court abused

its discretion by denying his petition without first holding an evidentiary hearing to find

the relevant facts with respect to his claim.

                                                II.

       “We review the District Court’s denial of an evidentiary hearing in a habeas case

for abuse of discretion.” United States v. Lilly, 

, 195 (3d Cir. 2008). “In a

federal habeas corpus proceeding, we exercise plenary review of the district court’s legal

conclusions and apply a clearly erroneous standard to the court’s factual findings.” 

marks omitted). 1

                                                III.

       A prisoner in federal custody may move to vacate a sentence if it “was imposed in

violation of the Constitution or laws of the United States[.]” 28 U.S.C. § 2255. In

evaluating a federal habeas petition, a District Court must hold an evidentiary hearing

“[u]nless the motion and the files and records of the case conclusively show that the

prisoner is entitled to no relief[.]” 

well-established that “[b]efore deciding


       1
        The District Court had jurisdiction over Kenley’s § 2255 petition pursuant to 28
U.S.C. § 1331. We have jurisdiction based on 28 U.S.C. §§ 1291 and 2253(a).

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whether to plead guilty, a defendant is entitled to the effective assistance of competent

counsel.” Padilla v. Kentucky, 

, 1480-81 (2010) (internal quotation marks

omitted). A prisoner seeking relief on the grounds of ineffective assistance of counsel

bears the burden to demonstrate two requirements. “First, the defendant must show that

counsel’s performance was deficient.” Strickland v. Washington, 

, 687

(1984). Second, “the defendant must show that the deficient performance prejudiced the

defense.” 

regard, the defendant “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” 

       We have “endorsed the practical suggestion in Strickland [that we may] consider

the prejudice prong before examining the performance of counsel prong because this

course of action is less burdensome to defense counsel.” 

(alteration

in original) (internal quotation marks and citation omitted). Finding that approach

appropriate here, we conclude that Kenley fails to demonstrate the requisite prejudice

entitling him to relief. To that end, his claim may be resolved on this ground without

deciding whether counsel’s performance was constitutionally deficient.

       “In a challenge to a guilty plea based on ineffective assistance of counsel, the

prejudice inquiry takes the form of ‘whether counsel’s constitutionally ineffective

performance affected the outcome of the plea process.’” United States v. Orocio, -- F.3d

-- , 

, at *9 (3d Cir. June 29, 2011) (emphasis in original) (quoting Hill

v. Lockhart, 

, 59 (1985)). “[I]n order to satisfy the ‘prejudice’ requirement,

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the defendant must show that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial. 

. In claiming ineffective assistance of counsel, Kenley states that

“[c]ounsel failed to inform petitioner that he would be waiving his ‘statute of limitations’

defense . . . by pleading guilty in [f]ederal court.” (App. Vol. II at 32A.) Kenley’s

petition does not state a desire to have gone to trial on the state charges had he known of

a viable statute of limitations defense to the federal charges, although his accompanying

memorandum of law does assert that he would have gone to trial in state court, had

counsel informed him of the defense.

       Kenley asserts that the record “makes it impossible to gauge the likelihood of Mr.

Kenley’s claim that he would have gone to trial in state court had he known that he had a

complete defense to the federal charges.” (Br. for Appellant Jesse Kenley at 27.) We

disagree. Kenley fails to express a “plausible foundation in the record” to support his

claim. United States v. Nahodil, 

, 327 (3d Cir. 1994). There is no basis in the

record before us upon which Kenley can demonstrate a reasonable probability that he

would have gone to trial. To the contrary, the record suggests the opposite. Thornton’s

testimony demonstrates that the focus of the federal plea negotiations was arriving at a

term of years that would be agreeable to all parties. (App. Vol. II at 81A-82A.)

Additionally, Thornton expressed his concern that Kenley could face a capital murder

prosecution in state court if a federal plea agreement was not reached. (Id. at 67A, 82A.)

There is no indication in the record that Kenley would have wanted to go to trial on the

                                             5
state charges, had he been aware of the statute of limitations defense. Rather, the record

demonstrates that Thornton’s advice to Kenley was driven by the desire to avoid a

potential death penalty case. Cf. 

(record supported petitioner’s

claims of prejudice where he was reluctant to admit to the underlying facts of the offense

in pleading guilty, where he interrupted the guilty plea hearing several times to confer

with counsel, and where he labored over decision to plead guilty, thus entitling him to an

evidentiary hearing).

       Kenley’s attempt to blame deficiencies in the record are not well-taken. By failing

to set forth “special circumstances that might support the conclusion that he placed

particular emphasis on [the statute of limitations defense] in deciding whether or not to

plead guilty,” 

, he falls short of meeting his burden to show a

reasonable probability that he would have gone to trial. Simply put, Kenley does not

demonstrate a reasonable probability that he was prejudiced because the record reveals

that his objective during the plea negotiations was to avoid a capital murder prosecution

and his counsel in fact achieved this goal. Because he did not establish prejudice, “the

motions and the files and records of the case conclusively show that [Kenley] is not

entitled to relief.” 28 U.S.C. § 2255(b). Accordingly, the District Court did not abuse its

discretion in declining to hold an evidentiary hearing.

                                            IV.

       For the foregoing reasons, we will affirm the order of the District Court.




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