
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2123                                  KENNETH BARTLETT,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                [Hon. Walter Jay Skinner, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Kenneth Bartlett on brief pro se.            ________________            Donald K. Stern, United States Attorney, and Thomas C. Frongillo,            _______________                              ___________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                     May 30, 1996                                 ____________________                      Per  Curiam.   Petitioner Kenneth  Bartlett appeals                      ___________            from  the  district  court's  summary denial  of  his  motion            pursuant to  28 U.S.C.    2255.   We  affirm for  the reasons                                                  ______            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.                       ______________    ____            1984). "Ineffective assistance of  counsel may undermine  the            voluntariness of  a guilty plea by  the defendant." Panzardi-                                                                _________            Alvarez v. United States,  879 F.2d 975, 982 (1st  Cir. 1989)            _______    _____________            (citing Hill  v. Lockhart,  474  U.S. 52,  56 (1985)),  cert.                    ____     ________                               _____            denied,  493  U.S.  1082   (1990).    The  two-prong  inquiry            ______            developed in  Strickland v. Washington, 466  U.S. 668 (1984),                          __________    __________            applies  in this context.  Therefore, to obtain relief on his                                         -2-            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                            ___            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.                       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                            _____________     _______            Cir.  1995),  is instructive.   In  Labonte, we  affirmed the                                                _______            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.                                                             ___            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                       ___            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.                                         -3-                      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.            _______                      In this case, as in LaBonte, the attorney's alleged                                          _______            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            __________            claim."  Id.  at 1413-14.  The district court  did not err in                     ___            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.                        ________                                         -4-
