NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 9 2025

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 22-16998 Plaintiff-Appellee, D.C. No. 4:17-cr-00578-JSW-1 v.

MEMORANDUM*

DAVID CONERLY, AKA David Clayton Conerly, Defendant-Appellant,

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Argued and Submitted December 4, 2024 San Francisco, California

Before: COLLINS, VANDYKE, and MENDOZA, Circuit Judges.

Defendant-Appellant David Conerly appeals the denial of his 28 U.S.C.

§ 2255 motion, which sought to vacate his conviction and sentence on the grounds

that, inter alia, his attorney had rendered ineffective assistance with respect to

pleading guilty. This court issued a certificate of appealability limited to that issue,

and we therefore have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a) over

Conerly’s appeal of that ruling. We review de novo whether a district court

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. correctly denied, without a hearing, a § 2255 motion asserting ineffective

assistance of counsel. United States v. Chacon-Palomares, 208 F.3d 1157, 1158

(9th Cir. 2000). We affirm.

1. The district court did not err in rejecting Conerly’s ineffective assistance

claim regarding the Government’s March 2018 proposal that, in exchange for

Conerly’s guilty plea, the parties would stipulate to a binding sentencing range of

57–87 months under Federal Rule of Criminal Procedure 11(c)(1)(C).

To prevail on an ineffective assistance of counsel claim, the defendant must

show (1) “that counsel’s performance was deficient” and (2) “that the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687

(1984). On appeal, Conerly contends that his counsel was ineffective with respect

to Conerly’s consideration of the March 2018 plea offer by failing to pursue any of

several available options to obtain greater clarity as to Conerly’s criminal history.

In discussions with Conerly, his counsel had suggested at that time that Conerly’s

criminal history category would be category IV, but counsel also acknowledged

that it might be category III or category V. However, counsel later successfully

argued, at sentencing in November 2018, that a particular prior marijuana

conviction should be excluded in calculating criminal history and that Conerly’s

criminal history category was therefore III. Conerly asserts that, back in March, he

needed greater clarity about his criminal history category in order to assess

2 whether to accept the Government’s plea offer, and that if his counsel had taken

steps at that time to resolve or further clarify the issue of whether the marijuana

conviction should be included, he would have accepted the plea offer.

Conerly’s theory makes no logical sense, thereby confirming that he has

failed to make a sufficient showing of prejudice. Conerly does not dispute that his

counsel in March advised him that his criminal history category was likely IV,

which, in the absence of the plea agreement, would have exposed him to a higher

sentencing range than if it was III. But given that Conerly was unwilling to accept

the plea agreement when his counsel told him that his criminal category was IV,

there is no basis “to conclude with ‘reasonable probability’ that he would have

accepted the plea offer” if only he had known that the offer was less generous than

he had thought at the time. Nunes v. Miller, 350 F.3d 1045, 1054 (9th Cir. 2003)

(emphasis added) (quoting Strickland, 466 U.S. at 694), abrogated on other

grounds as stated in Ochoa v. Davis, 50 F.4th 865, 888 (9th Cir. 2022). The

district court did not err in rejecting this claim without an evidentiary hearing.

2. Conerly also contends that his counsel was ineffective regarding

Conerly’s decision whether to plead guilty, without a plea agreement, at a June

2018 hearing. We conclude that this claim was also properly rejected.

Conerly concedes that, prior to that hearing, he was aware from his

discussions with counsel that there was a “possibility that the [G]overnment could

3 add new charges,” but he asserts that he “did not know that to avoid new charges

[he] needed to plead guilty on that day.” Even assuming that counsel was

defective, Conerly fails to show prejudice—i.e., he has failed to show “a

reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59

(1985).

Conerly argues that, given the potentially applicable guidelines calculations

and the statutory maximum, he “would have faced a relatively small risk in going

to trial compared to pleading guilty,” but he concedes that this argument assumes

that he would be proceeding “without the [G]overnment’s threat to add a new

charge” (emphasis added). That qualification is significant, because Conerly has

failed to point to evidence that, but for counsel’s asserted errors, he would have

risked trial on additional charges. Conerly’s failure to carry his burden is

underscored by his colloquy with the district court at his plea hearing. See

Blackledge v. Allison, 431 U.S. 63, 73–74 (1977) (“[R]epresentations of the

defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any

findings made by the judge accepting the plea, constitute a formidable barrier in

any subsequent collateral proceedings.”); Muth v. Fondren, 676 F.3d 815, 821–22

(9th Cir. 2012) (stating that, in “the absence of extraordinary circumstances,” a

defendant’s sworn “statements at the plea colloquy carry a strong presumption of

4 truth” (citations omitted)). At the plea hearing, the district court addressed

Conerly’s concerns, questioned Conerly and counsel ex parte, and then put the

matter over until the end of the calendar to give Conerly more time to confer with

counsel. In his subsequent plea colloquy, Conerly specifically acknowledged that

he had “taken into account the possibility that the Government might charge [him]

with additional charges if [he] were not to plead guilty,” and he agreed that he

“made an informed and intelligent decision” that he wanted to avoid that risk. The

court questioned the prosecutor, who clarified that, even though there was no plea

agreement, he could represent that the Government would not file additional

charges if Conerly pleaded guilty that day. The court also specifically warned

Conerly that “the sentence imposed may be different from any estimate that [his]

attorney may have provided to [him]” and that it might be “greater” than what the

advisory sentencing guidelines might suggest.

On this record, Conerly has failed to provide any reasonable basis to

conclude that his plea was not knowing and voluntary or that, but for his counsel’s

alleged deficiencies, he would have chosen to proceed to trial and to run the risk of

additional charges. He therefore failed to establish prejudice, and his § 2255

motion alleging ineffective assistance concerning the June 2018 plea was properly

denied without an evidentiary hearing. See Hill, 474 U.S. at 59.

AFFIRMED.

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