                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 08 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No. 08-35377

               Plaintiff - Appellee,             D.C. Nos. 2:07-cv-03043-WFN
                                                           2:03-cr-02193-WFN
   v.

 SERGIO MANUEL CISNEROS,                         MEMORANDUM *

               Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Wm. Fremming Nielsen, District Judge, Presiding

                            Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

        Federal prisoner Sergio Manuel Cisneros appeals from the district court’s

order denying his motion for relief under 28 U.S.C. § 2255. We have jurisdiction

pursuant to 28 U.S.C. § 2253, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

EOH/Research
         Cisneros contends that counsel was ineffective for failing to inform him

about the government’s plea offer. The district court’s determination that counsel

discussed the plea agreement with Cisneros was not clearly erroneous. See United

States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004). Accordingly, Cisneros has

failed to show deficient performance or prejudice. See Strickland v. Washington,

466 U.S. 668, 687 (1984); United States v. Blaylock, 20 F.3d 1458, 1466 (9th Cir.

1994).

         Cisneros next contends that counsel was ineffective for failing to

communicate with Cisneros about his case, rendering it impossible for him to make

an intelligent decision regarding the plea offer. The district court found that

counsel discussed the plea offer with Cisneros, informed Cisneros of the risks of

rejecting it, and discussed the strength of the government’s case with Cisneros.

Counsel’s communication with Cisneros did not fall outside “the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689.

         In any event, because Cisneros refused at the time to consider the

government’s offer, he has failed to demonstrate a reasonable probability that he

would have timely accepted the government’s offer. See Hill v. Lockhart, 474 U.S.

52, 59–60 (1985); see also Jones v. Wood, 114 F.3d 1002, 1012 (9th Cir. 1997)




EOH/Research                                2                                     08-35377
(finding no prejudice where there was no “reasonable probability that at the time of

the offer” the petitioner would have accepted government’s plea offer).

       AFFIRMED.




EOH/Research                             3                                    08-35377
