                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 97-3938
                                   ___________

Darrell Levan Moses,                    *
                                        *
                   Appellant,           *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of Minnesota.
United States of America,               *
                                        * [UNPUBLISHED]
                   Appellee.            *
                                   ___________

                            Submitted: December 15, 1998
                                Filed: April 2, 1999
                                   ___________

Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.
                           ___________

PER CURIAM.

      While incarcerated at a federal facility, Darrell Levan Moses was charged with
two counts of inmate assault and one count of possession of a prohibited object.
 See 18 U.S.C. §§ 113(f), 1791(a)(2) (1988). Before trial, the Government offered
Moses a sixty-month sentence and agreed to drop the assault charges if Moses pleaded
guilty to the possession charge. Moses rejected the plea agreement. At trial, the jury
acquitted Moses of one count of assault but convicted him of the other two charges,
and the district court then sentenced Moses to 120 months in prison. After Moses’s
conviction was affirmed, Moses moved to have his sentence vacated, set aside, or
corrected, arguing he received ineffective assistance of counsel during plea
negotiations. See 28 U.S.C. § 2255 (Supp. II 1996). The district court denied the
motion without granting Moses an evidentiary hearing. Moses appeals, and we affirm.
       Moses contends the district court should have granted him an evidentiary hearing
on his ineffective assistance of counsel claim. We disagree. Moses is not entitled to
an evidentiary hearing if the allegations in his motion, the files, and the records of the
case, “accepted as true, would not entitle [him] to relief, or . . . the allegations cannot
be accepted as true because they are contradicted by the record, inherently incredible,
or conclusions rather than statements of fact.” Engelen v. United States, 68 F.3d 238,
240 (8th Cir. 1995). To obtain relief on his ineffective assistance of counsel claim,
Moses must show both that his counsel’s performance fell below an objective standard
of reasonableness and that this deficient performance prejudiced his defense. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hill v. Lockhart, 474 U.S. 52,
58-59 (1985); Engelen, 68 F.3d at 241. If Moses cannot establish prejudice, we need
not consider whether his counsel’s performance was deficient. See Strickland, 466
U.S. at 697; Engelen, 68 F.3d at 241. To establish prejudice and receive an evidentiary
hearing, Moses must present some nonconclusory, credible evidence showing there is
a reasonable probability that, but for his counsel’s advice, he would have accepted the
plea agreement. See Engelen, 68 F.3d at 241; Paters v. United States, 159 F.3d 1043,
1047 (7th Cir. 1998).
       As the district court properly concluded, Moses has not presented any
nonconclusory, credible evidence supporting his prejudice claim. Instead, Moses offers
only his own self-serving statements made in his pro se § 2255 motion and brief that
he would have accepted the plea agreement had his counsel explained that the
agreement did not require Moses to plead guilty to the assault charges and that Moses’s
career offender status guaranteed him the statutory maximum sentence of 120 months
if convicted of assault at trial. Moses’s conclusory statements alone are not the sort of
objective evidence required to establish a reasonable probability that he would have
accepted the plea agreement absent his counsel’s allegedly deficient performance. See




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Engelen, 68 F.3d at 241 (defendant was not entitled to hearing because defendant
presented no objective evidence that he would have admitted his guilt before trial);
Toro v. Fairman, 940 F.2d 1065, 1067-68 (7th Cir. 1991) (defendant was not entitled
to hearing because no objective evidence supported his self-serving claims of prejudice
in plea negotiations); Diaz v. United States, 930 F.2d 832, 834-35 (11th Cir. 1991)
(same); cf. Paters, 159 F.3d at 1046-48 (parental affidavits and government admissions
were objective evidence supporting defendant’s self-serving statements and warranting
a hearing).

       Moses’s after-the-fact statements are also contradicted by the record. See Jones
v. Wood, 114 F.3d 1002, 1012 (9th Cir. 1997). Moses now claims he would have
accepted the plea agreement, but he was unwilling to plead guilty to the assault charges
and he thought the plea agreement required him to do so. Nowhere in his pro se
submission, however, is there any indication Moses ever told his attorney he would be
willing to plead guilty to the possession charge. Similarly, Moses now claims he also
rejected the plea agreement with its sixty-month sentence because, in his experience,
a defendant convicted at trial always received less than the statutory maximum
sentence. Moses states he decided to go to trial because he thought, if convicted, he
would receive approximately the same sentence as the one offered in the plea
agreement. Yet, Moses acknowledges his attorney told him during their discussion of
the plea agreement that he would be sentenced as a career offender if he went to trial
and admits he understood “that he faced a maximum penalty [for the assault charge]
of ten years (one hundred twenty months)” if convicted. Although Moses now
contends he did not understand the effect his career offender status would have on his
sentence, Moses never complained or objected at sentencing when he was given the
statutory maximum, a sentence twice as long as the one Moses now says he expected
to receive. Moses further admits that, despite his awareness of his maximum
sentencing exposure, he went to trial because his attorney told him he stood a good
chance of winning his case. Moses now claims his defense was hopeless and his
attorney misrepresented his chances. Contrary to Moses’s view, the jury acquitted

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Moses of one of the assault charges and the district court, in denying Moses’s § 2255
motion, found Moses’s trial counsel provided a strong defense and accurately assessed
the strength of Moses’s case. In short, Moses knew he faced a possible ten-year
sentence if convicted of assault, he chose to gamble on acquittal, and he cannot now
shift gears and credibly complain about his choice.

       Given the absence of any nonconclusory, credible evidence supporting Moses’s
self-serving postconviction statements that he would have accepted the plea agreement
absent his counsel’s allegedly deficient performance, we conclude his statements are
not sufficient to establish a reasonable probability he would have done so. Thus, the
district court did not abuse its discretion in denying Moses’s § 2255 motion without an
evidentiary hearing, and we affirm.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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