                                                                           FILED
                            NOT FOR PUBLICATION                              OCT 5 2011

                                                                        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. 10-56982

               Plaintiff - Appellee,             D.C. Nos.    3:10-cv-00593-WQH
                                                              3:07-cr-03021-WQH
  v.

PEDRO CRUZ-TERCERO,                              MEMORANDUM *

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       Federal prisoner Pedro Cruz-Tercero appeals pro se from the district court’s

orders denying his motion under 28 U.S.C. § 2255 and his motion for

reconsideration. We have jurisdiction under 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).
      Cruz-Tercero contends that the district court erred by denying his habeas

motion and motion to reconsider because he received ineffective assistance of

counsel when his trial attorneys failed to advise him adequately to accept the plea

agreement offered by the government rather than proceed to trial. The district

court did not err in rejecting this claim because Cruz-Tercero has not shown that

his attorneys’ performance was deficient or that it is reasonably likely that he

would have received a shorter sentence but for his attorneys’ performance. See

Strickland v. Washington, 466 U.S. 668, 687 (1984). The district court did not

abuse its discretion by denying an evidentiary hearing based on the record before

it. See Turner v. Calderon, 281 F.3d 851, 890 (9th Cir. 2002).

      To the extent that Cruz-Tercero sought to advance new grounds for relief in

his motion to reconsider, the district court properly denied these claims as an

improper successive § 2255 motion. See 28 U.S.C. § 2255(h); United States v.

Allen, 157 F.3d 661, 664 (9th Cir. 1998).

      AFFIRMED.




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