facts supporting each ground”). We consider those allegations together with “the

files and records of the case” to determine whether Perez has established the

elements of his claim of ineffective assistance of counsel during the plea

bargaining process. See 28 U.S.C. § 2255(b). To prevail on that claim, Perez had

to state sufficient facts to 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). Perez failed to make this showing.

A

Perez contends that his counsel failed adequately to explain the terms of the

Government’s plea offer. However, Perez’s declaration acknowledges that his

counsel told him about the key provision of the offer—that it provided for a 10-

year sentence, which was well below the statutory maximum of life imprisonment.

2 Perez has not identified any other material term of the offer that should have been

communicated to him but was not, nor has he pleaded any facts to show that any

such omitted details would have caused him to accept the offer. Hill v. Lockhart,

474 U.S. 52, 59 (1985). Beyond that, Perez notes only that his counsel did not

provide him with a written copy of the plea agreement. Mere failure to provide the

actual written plea agreement, without more, does not establish ineffective

assistance. See United States v. Rivera-Sanchez, 222 F.3d 1057, 1061 (9th Cir.

2000).

Perez also asserts that he directed his counsel to present a counteroffer in

which he would agree to plead guilty in exchange for a five-year sentence.

Assuming that his counsel failed to communicate that counteroffer, we conclude

that Perez has not established prejudice. His motion provides no facts to support a

plausible inference that the Government would have accepted a five-year sentence.

B Perez further contends that, in two respects, his counsel failed to provide

him with “the information he needed to make an informed decision whether to

accept” the Government’s plea offer. Both of these contentions fail.

First, Perez asserts that his counsel “never explained the significance of

[Perez’s] status as a uniformed, armed, law enforcement officer, and how that

reality could result in an increase in [the] statutory maximum punishment for the

3 offenses from 10 years to life.” But the premise of Perez’s argument—that his

status as an officer could increase the statutory maximum punishment—is

incorrect. Rather, the factors that could have increased—and ultimately did

increase—his maximum sentence to life imprisonment were the alleged

“aggravated sexual abuse” of both victims and the alleged “kidnapping” or

“attempt to kidnap” one of those victims. See 18 U.S.C. § 242. There was no

obligation for Perez’s counsel to tell Perez that his “status as a uniformed, armed,

law enforcement officer . . . could result in an increase in [the] statutory maximum

punishment” because such a statement would not have been accurate. Moreover,

Perez was provided with a copy of the indictment, and he was repeatedly advised

on the record, prior to turning down the plea offer, that his § 242 charges were

based on alleged sexual abuse he committed using his authority as an officer, and

that he faced a life sentence on each count. Even assuming counsel did not

specifically address these matters with Perez, Perez has failed to show prejudice in

light of these on-the-record statements.

Second, Perez asserts that his counsel made an “objectively unreasonable

assessment of the strength of the Government’s case.” Perez alleges that his

counsel told him that he had a “winnable case” and that counsel “did not think that

the Government could prove any set of facts qualifying [Perez] for the higher

statutory maximum.” Where, as here, the defendant knew the material terms of the

4 plea offer but asserts that counsel failed to accurately assess the strength and

weaknesses of the case, we require the defendant to “demonstrate gross error on

the part of counsel,” meaning that “the advice he received was so incorrect and so

insufficient that it undermined his ability to make an intelligent decision about

whether to accept the plea offer.” Turner v. Calderon, 281 F.3d 851, 880 (9th Cir.

2002) (simplified). Thus, absent a showing that counsel’s “defense strategy and

presumably sincere prediction” were outside the wide range of reasonable

professional judgment, a defendant cannot rely on a self-serving assertion, “made

years later,” that with different advice, he would have accepted the plea offer. Id.

at 881. “If the rule were otherwise, every rejection of a plea offer, viewed perhaps

with more clarity in the light of an unfavorable verdict, could be relitigated upon

the defendant’s later claim that had his counsel better advised him, he would have

accepted the plea offer.” Id.

Applying these standards, we conclude that Perez failed to present sufficient

facts to establish that his counsel’s assessment of the case, at the time the plea offer

was rejected, was outside the range of reasonable professional judgment. Although

Perez now paints the evidence against him as overwhelming, a reasonable defense

counsel could conclude that the case was triable in that it largely hinged on the

credibility of the two victims, both of whom were prostitutes with potentially

significant credibility issues. The fact that the district court subsequently granted

5 an in limine motion by the Government excluding some key impeachment material

does not show that counsel’s earlier assessment was unreasonable. Indeed, in

granting that motion, the district court itself acknowledged that it was a “close

call.” “Trial counsel was not constitutionally defective because he lacked a crystal

ball.” Turner, 281 F.3d at 881.1

II

For these reasons, we conclude that, disregarding the competing statements

of Perez’s counsel that the Government presented in opposition to the § 2555

motion, Perez’s “allegations, viewed against the record, . . . do not state a claim for

relief.” United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989). The district

court therefore properly denied the § 2255 motion without holding an evidentiary

hearing.

AFFIRMED.

1 Even assuming that the district court should have considered the additional declaration from Perez’s ex-wife, Gabriela Burrell, which was submitted with his reply brief opposing dismissal, it would not alter our conclusions. Assuming that the comments of counsel that Burrell recounts during her “first visit” to his office occurred before the plea offer was rejected, the comments merely reiterate Perez’s allegation that counsel then viewed the case as a triable credibility contest in which there was substantial impeachment material. Burrell’s additional vague contention that counsel was difficult to reach weeks later, “[a]s the matter progressed,” does not establish that counsel’s assessment of the case at the time the plea was rejected was outside the range of reasonable professional judgment.

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