

                    [NOT FOR PUBLICATION]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

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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.

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          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.                                

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