                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 31 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                    No.   12-16611

                Plaintiff-Appellee,          D.C. Nos. 4:11-cv-00179-DCB
                                                       4:05-cr-00125-DCB- BPV-3
 v.

JULIO MARIO HARO-VERDUGO,                    MEMORANDUM*

                Defendant-Appellant.


UNITED STATES OF AMERICA,                    No.   12-16740

                Plaintiff-Appellee,          D.C. Nos. 4:11-cv-00245-DCB
                                                       4:05-cr-00125-DCB-BPV-2
 v.

SERGIO ANTONIO HARO,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                      Argued and Submitted August 14, 2018
                            San Francisco, California

Before: SCHROEDER, SILER,** and MURGUIA, Circuit Judges.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Defendants-Appellants Julio Mario Haro-Verdugo (“Julio”) and Sergio

Antonio Haro (“Sergio”) appeal the district court’s decision denying each of their

motions under 28 U.S.C. § 2255. Reviewing de novo, we affirm all claims except

one. See Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir. 1994). We reverse and

remand the second certified issue regarding Sergio’s double jeopardy claim.

      The district court certified three issues for appeal. The defendants raise three

uncertified claims, and Sergio raised two “amended issues” in his supplemental

brief. We certify the three uncertified issues because the defendants have made a

“substantial showing of the denial of a constitutional right” and reasonable jurists

could debate the federal district court’s resolution of the claims. See 28 U.S.C.

§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). We dismiss Sergio’s

two “amended issues” because he did not initially present these issues to the

district court. The claims are not properly before this court and are dismissed. See

United States v. Mejia-Mesa, 153 F.3d 925, 931 (9th Cir. 1998).

      1.     In the first certified claim, Julio and Sergio claim they were denied

their Sixth Amendment right to the effective assistance of counsel based on each of

their trial counsels’ failure to effectively use government-agent reports to impeach

the government agents’ credibility. In their joint opening brief, Julio and Sergio



      **
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

                                          2
stated they were no longer advancing this claim. Sergio’s subsequent appeal

counsel, however, filed a supplemental opening brief and argued this claim of

ineffective assistance in part. Thus, while Julio has waived this claim, we consider

Sergio’s argument on this claim.

      Sergio contends that his Sixth Amendment rights were violated because he

lacked access to his full trial file, which, he argues, was necessary for him to

identify issues during trial that may have resulted in developing viable claims for

his section 2255 motion. Sergio, however, does not point with any particularity to

an argument he might have pursued had he had access to his file. He also cites to

no authority for the proposition that the lack of personal access to his full trial file

violated his Sixth Amendment rights. In short, Sergio fails to show prejudice, a

necessary element to succeed on an ineffective assistance of counsel claim on a

section 2255 motion. See Davis v. Ayala, 135 S. Ct. 2187, 2197–98 (2015).

Accordingly, Sergio’s claim fails. The first certified claim is denied as to both Julio

and Sergio.

      2.      The second certified claim only pertains to Sergio. Sergio contends

his appellate counsel was ineffective for failing to raise a violation of his double

jeopardy rights when Sergio was convicted and sentenced for engaging in a

continuing criminal enterprise and for conspiring to distribute and to possess with

intent to distribute marijuana and cocaine. The government concedes on this claim



                                            3
and agrees that this court should reverse and remand for the district court to decide

which convictions to vacate and reconsider Sergio’s sentence. United States v.

Hector, 577 F.3d 1099, 1104 (9th Cir. 2009) (reversing and remanding for the

district court to make a discretionary determination as to which conviction should

be vacated).

      We have previously addressed the underlying double jeopardy question as to

one of Sergio’s co-defendants in United States v. Burgos-Valencia, 2010 U.S. App.

LEXIS 5674 (9th Cir. 2010), and granted relief. We rely on our reasoning in

Burgos-Valencia here. Convicting and sentencing Sergio to the continuing criminal

enterprise count and the drug distribution conspiracy counts is plain error, because,

here, the same underlying conduct was involved as to all counts, and the drug

distribution conspiracy is a lesser-included offense of the continuing criminal

enterprise offense. Id. at *16–17; see also Rutledge v. United States, 517 U.S. 292,

300, 306–07 (1996) (holding that when the same underlying conduct is involved,

the drug distribution conspiracy is a lesser-included offense of the continuing

criminal enterprise offense and a conviction of both violates double jeopardy). A

conviction of the continuing criminal enterprise offense and the lesser-included

offenses violates double jeopardy. Rutledge, 517 U.S. at 307.

      Sergio’s counsel was deficient for failing to raise this double jeopardy

violation issue, and Sergio was prejudiced by counsel’s deficiency where he was



                                          4
convicted and sentenced on all counts. See Strickland v. Washington, 466 U.S. 668,

687 (1984) (holding that to establish an ineffective assistance of counsel claim one

must show that counsel’s performance was deficient and that the individual was

prejudiced by the deficiency). Accordingly, we reverse and remand on this claim

related to Sergio’s convictions for Counts 1, 3, and 11 for the district court to hold

a hearing and then to make a discretionary determination as to which of the

convictions should be vacated. Upon vacating either the continuing criminal

enterprise conviction or the drug distribution conspiracy convictions, the district

court should reconsider the sentence imposed on Sergio.

       3.    The third certified claim only pertains to Julio. Julio argues that he

was denied his Sixth Amendment right to effective assistance of counsel based on

his counsel’s alleged absence during a pretrial settlement conference. Julio had a

Sixth Amendment right to effective assistance of counsel in the plea negotiation

process as plea negotiations are a “critical stage” of criminal proceedings. Lafler v.

Cooper, 566 U.S. 156, 165 (2012). To make an ineffective assistance of counsel

claim and establish prejudice in the plea context, Julio must show that, but for the

ineffective advice of counsel, there is a reasonable probability that Julio would

have accepted the plea offer and it would have been presented to the court. Id. at

164.

       Even assuming that Julio was not represented by counsel at the settlement



                                           5
conference and that counsel’s absence would constitute deficient performance

under Strickland, Julio’s claim fails because he cannot show prejudice. Julio claims

he would have accepted the government’s plea offer but for the Magistrate Judge’s

offensive and upsetting comments made during the settlement conference. But

Julio does not explain how his counsel’s presence would have shielded him from

or changed his reaction to the Magistrate Judge’s comments. Moreover, Julio had

approximately a year after the settlement conference during which he could have

decided to take the plea offer once his feelings toward the Magistrate Judge’s

behavior lessened. Julio’s second, later-appointed counsel also submitted an

affidavit in which she states that she advised Julio of the benefits of the plea offer

and that it was available to Julio. Julio contends in his declaration that his counsel

did not advise him about the plea offer. His allegations, however, when viewed

against the record as a whole, are “palpably incredible or patently frivolous.”

United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984). Based on the

evidence of counsel’s multiple meetings with Julio and the Magistrate Judge’s

discussions with the defendants in this case, it is not believable that Julio was

unaware of the potential benefits of the plea agreement. The record does not

support that but-for Julio’s counsel presumed absence at the settlement conference,

Julio would have accepted the government’s plea offer. Thus, Julio has failed to

show prejudice. This claim is denied.



                                           6
      4.     The first uncertified claim pertains to both defendants. Julio and

Sergio claim that the district court erred in not conducting an evidentiary hearing

on their claims that the Magistrate Judge impermissibly participated in plea

negotiations in violation of Federal Rule of Criminal Procedure 11 when the

Magistrate Judge held a settlement conference with various defendants, which the

defendants argue prejudiced them.

      We review the denial of a motion for an evidentiary hearing for an abuse of

discretion. United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir. 2003). “A

district court must grant a federal habeas petitioner’s motion for an evidentiary

hearing ‘unless the motion and the files and records of the case conclusively show

that the prisoner is entitled to no relief.’” Id. at 824 (quoting 28 U.S.C. § 2255).

“Although section 2255 imposes a fairly lenient burden on the petitioner, the

petitioner is nonetheless ‘required to allege specific facts which, if true, would

entitle him to relief.’” Id. (quoting United States v. McMullen, 98 F.3d 1155, 1159

(9th Cir. 1996)).

      Here, the Magistrate Judge conducting a settlement conference, absent a

clear waiver by defendants, violated Julio and Sergio’s right to be free from

judicial interference into plea negotiations under Rule 11. See United States v.

Myers, 804 F.3d 1246, 1253, 1255–56 (9th Cir. 2015). However, it is not

reasonably probable that but for the improper judicial interference, Julio and



                                           7
Sergio would have proceeded differently by accepting the government’s plea offer.

See United States v. Kyle, 734 F.3d 956, 963 (9th Cir. 2013). As stated, significant

time passed between when the settlement conference took place and when the

initial trial began, and there were several intervening events that undermine a

causal link between the Rule 11 violation and the defendants’ decision to not

accept the plea deal. During the year, both defendants had time to speak with their

attorneys and consider whether they wanted to accept the plea. It is “palpably

incredible” that it was solely the Magistrate Judge’s interaction with the defendants

in the settlement conference that led to their decision to not take the plea in light of

the record here. See Schaflander, 743 F.2d at 717. Because the record shows that

the defendants would not have been entitled to relief on this claim because they

cannot show prejudice, the district court did not abuse its discretion in denying

defendants’ motion for an evidentiary hearing. This claim is denied.

      5.     The second uncertified claim pertains to Julio. Julio contends that the

district court erred in not conducting an evidentiary hearing on his claim that his

attorney failed to render effective assistance in advising him regarding the plea

offer, thereby leading to his rejection of the plea offer. Julio again fails to

demonstrate prejudice because he cannot show that but for the alleged ineffective

assistance of counsel there is a reasonable probability that the plea offer would

have been presented to the court. Lafler, 566 U.S. at 162–64. In his briefing, Julio



                                            8
provides no specific factual allegations as to how his counsel’s alleged general

failure to advise him led to his rejection of the plea offer. Because Julio fails to

make any specific factual allegations, he fails to show how he might be entitled to

relief. See 28 U.S.C. § 2255; United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir.

2003). Accordingly, the district court did not abuse its discretion by not holding an

evidentiary hearing. This claim is denied.

      6.     In the third uncertified claim, Sergio contends ineffective assistance of

counsel on the part of his trial counsel for failing to raise the double jeopardy issue

discussed above. As stated, Sergio is entitled to relief on the double jeopardy issue.

      7.     The fourth uncertified claim pertains to Sergio. He argues that the

district court erred in not conducting an evidentiary hearing on Sergio’s claim that

his counsel was ineffective by failing to adequately advise him of the benefits of

the government’s plea offer. On the record before us, Sergio’s prior counsel only

submitted answers to government interrogatories that do not appear to be sworn

statements. We have previously required that, at a minimum, district courts should

at least require the government to produce sworn statements from a defendant’s

attorney to clarify issues arising from ineffective assistance claims. See United

States v. James, 8 F.3d 32 (9th Cir. 1993) (unpublished).

      However, here, despite the lack of sworn attorney statements, on the record

as a whole, Sergio’s claims are “palpably incredible or patently frivolous.”



                                           9
Schaflander, 743 F.2d at 717. Sergio claims that he was never told about the basic

elements of his criminal charges, the evidence of the government’s case, and the

benefits of the plea offer. These allegations are palpably incredible in light of the

multiple attorney statements in this case, the evidence that Sergio was aware of the

plea offer for a long period of time, and that he was involved in discussions about

his case with his family members who were also co-defendants. In light of this

record, Sergio’s assertions as to his total lack of advice regarding the plea

agreement are not believable. Therefore, his allegations do not show he would be

entitled to relief, and he is not entitled to an evidentiary hearing. See Leonti, 326

F.3d at 1116. This claim is denied.

      AFFIRMED in part, REVERSED and REMANDED in part. We

REVERSE and REMAND as to the second certified claim regarding Sergio’s

double jeopardy claim. Specifically, we reverse and remand Sergio’s

convictions on Counts 1, 3, and 11 for the district court to hold a hearing and

then make a discretionary determination as to which conviction or convictions

should be vacated. Upon vacating, the court should reconsider the sentence

imposed on Sergio.




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