United States v. Thomas Ross

MEMORANDUM

Thomas Ross appeals the district court’s denial of his 28 U.S.C. § 2255 motion challenging his drug convictions and sentences. We review the ineffective assistance of counsel claims de novo and denial of the evidentiary hearing for an abuse of discretion. United States v. Chacon-Palomares, 208 F.3d 1157, 1158-59 (9th Cir.2000). We affirm.

Ross claims that his trial lawyer (Muhammad) was ineffective for advising him to reject a pretrial plea agreement. To prevail on his claim, Ross must establish that he was prejudiced — i.e., that there was a reasonable probability that Ross would have accepted the pretrial plea but for his lawyer’s bad advice. Missouri v. Frye, — U.S.-, 132 S.Ct. 1399, 1409 , 182 L.Ed.2d 379 (2012); Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 1384 , 182 L.Ed.2d 398 (2012). This claim fails because there is no evidence in the record that Ross would have considered or ac cepted any pretrial plea. In fact, the evidence is to the contrary. The lawyer that Ross had before Muhammad (Holley) strongly recommended that Ross accept the plea, but Ross would not hear of it. Ross also rejected a plea offer made after he already had been found guilty and had been…