                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 12 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

WESLEY HARLAN KINGSBURY,                        No.    16-56789

                Petitioner-Appellant,           D.C. No.
                                                2:15-cv-09697-DSF
 v.

UNITED STATES OF AMERICA,                       MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    Dale S. Fischer, District Judge, Presiding

                             Submitted July 10, 2019**
                               Pasadena, California

Before: SMITH, JR. and FRIEDLAND, Circuit Judges, and BASTIAN,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Stanley A. Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
       Wesley Harlan Kingsbury (Kingsbury) appeals the district court’s denial of

his 28 U.S.C. § 2255 petition to vacate his conviction and sentence. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo, Mendoza v.

Carey, 449 F.3d 1065, 1068 (9th Cir. 2006), and we affirm.

    (1) Voluntariness of Kingsbury’s Guilty Plea.1

       We review the voluntariness of Kingsbury’s guilty plea de novo, United

States v. Littlejohn, 224 F.3d 960, 964 (9th Cir. 2000), and the district court’s

findings for clear error. United States v. Kaczynski, 239 F.3d 1108, 1114 (9th Cir.

2001).

       A guilty plea is valid only to the extent it is “voluntary” and “intelligent.”

Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Brady v. United

States, 397 U.S. 742, 748 (1970)). “A plea is voluntary if it ‘represents a voluntary

and intelligent choice among the alternative courses of action open to the

defendant.’” Kaczynski, 239 F.3d at 1114 (quoting North Carolina v. Alford, 400

U.S. 25, 31 (1970)). “[A] guilty plea is void if it was induced by promises or

threats which deprive it of the character of a voluntary act.” Id. (quoting Sanchez v.

United States, 50 F.3d 1148, 1454 (9th Cir. 1995)).



1
  Kingsbury is not barred from raising this claim for the first time on collateral
review. We find the Government waived its right to raise the issue of procedural
default by failing to first raise the issue in the district court. See United States v.
Barron, 172 F.3d 1153, 1156 (9th Cir. 1999) (en banc).

                                            2
      Kingsbury alleges his guilty plea was involuntary because it was obtained by

unlawful inducement and/or coercion perpetrated by his attorney and father.

Kingsbury further contends that his guilty plea was involuntary because he was in

poor health and was told that he needed to plead guilty to have the opportunity to

receive necessary medical care and to avoid the stress of trial.

      The evidence in the record, which includes Kingsbury’s prior statements

made during his Rule 11 plea colloquy and signed written plea agreement, directly

contradicts the allegations presented in Kingsbury’s § 2255 petition. For example,

Kingsbury stated during the colloquy that he understood he could receive medical

care notwithstanding the trial, and that no one had made promises or

representations to him outside of the plea agreement. We give “substantial weight”

to Kingsbury’s prior sworn statements, Kaczynski, 239 F.3d at 1115, and affirm the

district court’s finding that his guilty plea was valid. See Muth v. Fondren, 676

F.3d 815, 821 (9th Cir. 2012) (“Petitioner’s statements at the [Rule 11] plea

colloquy carry a strong presumption of truth.”); United States v. Ross, 511 F.3d

1233, 1236 (9th Cir. 2008) (“Statements made by a defendant during a guilty plea

hearing carry a strong presumption of veracity in subsequent proceedings attacking

the plea.”).




                                          3
      (2) Ineffective Assistance of Counsel.

         A claim of ineffective assistance of counsel presents a mixed question of law

and fact, which this Court reviews de novo. United States v. Chacon-Palomares,

208 F.3d 1157, 1158 (9th Cir. 2000).

         In Hill v. Lockhart, the United States Supreme Court held that “the two-part

Strickland v. Washington test applies to challenges to guilty pleas based on

ineffective assistance of counsel.” 474 U.S. 52, 58 (1985). As such, a petitioner

claiming ineffective assistance of counsel in this context must show both deficient

performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687-88

(1984).

         To establish deficient performance, a petitioner must show that “counsel’s

representation fell below an objective standard of reasonableness.” Id. at 688. To

satisfy the prejudice requirement in the context of guilty pleas, a petitioner “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.” Hill, 474 U.S. at

59.

         Kingsbury’s ineffective assistance of counsel claim is intertwined with his

claim that his guilty plea was involuntary. As noted above, Kingsbury claims he

felt pressured to plead guilty by his attorney and father. Kingsbury also claims he

was told by his attorney that he would not be presenting witnesses at trial if he did


                                            4
not plead guilty, and that his attorney did not submit certain letters in support of

Kingsbury at sentencing.

      Kingsbury fails to establish a claim of ineffective assistance of counsel.

Kingsbury’s prior sworn statements, which “carry a strong presumption of truth,”

Muth, 676 F.3d at 821, directly contradict the allegations presented in his § 2255

petition—Kingsbury expressly acknowledged that he was giving up his right to

compel witnesses to testify on his behalf, and stated that he had not been

threatened or coerced in entering the plea. Kingsbury’s remaining allegations fail

to overcome the “strong presumption that counsel’s conduct falls within the wide

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

   (3) Evidentiary Hearing.

      We review the district court’s denial of an evidentiary hearing for abuse of

discretion. Mendoza, 449 F.3d at 1068.

      The district court did not abuse its discretion in declining to hold an

evidentiary hearing because the credibility of Kingsbury’s claims could be

“conclusively decided on the basis of documentary testimony and evidence in the

record.” United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir. 1988) (quoting

Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988)). In this case, the record

includes the transcript of Kingsbury’s Rule 11 plea colloquy, his signed written

plea agreement, and declarations filed by his attorney. Based on this evidence, we


                                           5
find the district court was well equipped to assess the credibility of Kingsbury’s

claims without the need to conduct an evidentiary hearing. See Shah v. United

States, 878 F.2d 1156, 1160 (9th Cir. 1989).

      AFFIRMED.




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