Burdeau

United States v. Burdeau

Good Law
84 F. App'x 862
United States Court of Appeals for the Ninth CircuitDecember 18, 2003No. 01-35314California334 words

Opinion

Lead Opinion

MEMORANDUM *

Herbert Louis Burdeau appeals the district court’s dismissal of his 28 U.S.C. § 2255 federal habeas petition. We review de novo and affirm.

Burdeau claims his attorney provided ineffective assistance of counsel by conveying to Burdeau the idea that he would receive a ten-year sentence if he went to trial, causing Burdeau to withdraw his plea. 2 Under Strickland v. Washington, 3 Burdeau must show that his attorney’s performance was deficient and that the deficient performance prejudiced him.

As in United States v. Thornton, 4 the district court advised Burdeau that a maximum sentence under the Sentencing Guidelines was possible, “thus rendering any advice given by [Burdeauj’s counsel, even if erroneous, non-prejudicial.” 5 Therefore, even if Burdeau’s version of the hallway conversation were true, he does not state a claim of ineffective assistance.

“Where a section 2255 motion is based on alleged occurrences outside the record, no hearing is required if the allegations, viewed against the record ... fail to state a claim for relief....” 6 The district court did not err in dismissing the habeas petition without holding an evidentiary hearing.

AFFIRMED.

This…

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