OpenJurist

917 F2d 27 Davis v. United States

917 F.2d 27

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Fred Lee DAVIS, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellant.

No. 89-55841.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 23, 1990.*
Decided Oct. 25, 1990.

Before HUG, NELSON and LEAVY, Circuit Judges.

1

MEMORANDUM**

2

Fred Lee Davis appeals pro se the district court's denial of his 28 U.S.C. Sec. 2255 motion to vacate his sentence as successive. Davis pleaded guilty to two counts of attempted bank robbery. In his section 2255 motion, he contends that his guilty plea was defective and that he was denied effective assistance of counsel. We affirm.

3

* Successive Motion

4

Section 2255 provides that "[t]he sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." The sentencing court has discretion to refuse to consider a subsequent section 2255 motion where (1) the subsequent motion presents the same ground determined adversely to the movant in the earlier motion, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent petition. Sanders v. United States, 373 U.S. 1, 15 (1963); Molina v. Rison, 886 F.2d 1124, 1127 (9th Cir.1989); Rule 9(b), Rules Governing Section 2255 Proceedings, 28 U.S.C. foll. Sec. 2255.

5

In his first section 2255 motion, Davis raised three issues: (1) his guilty plea was defective under Fed.R.Crim.P. 11 because he was not aware of the parole consequences of his guilty plea; (2) the court failed to make findings concerning alleged inaccuracies in his presentence report; and (3) his public defender rendered him ineffective assistance of counsel by not informing him of the parole consequences of his guilty plea and by failing to ensure that the court address the alleged inaccuracies in the presentence report. In the second motion, Davis alleged that (1) his guilty plea was defective under Fed.R.Crim.P. 11 because the court did not establish that the banks that Davis robbed were federally insured and that Davis had the specific intent to be found guilty of attempted bank robbery and (2) his counsel rendered him ineffective assistance by failing to object to the court's failure to establish this factual basis for his guilty plea. Although Davis's motion is difficult to follow, it appears that the second motion raises new claims not argued in the first petition.

6

Nevertheless, a sentencing court is relieved from considering the merits of new claims in a subsequent motion if the motion "do[es] not state a claim for relief or [is] so palpably incredible or so patently frivolous or false as to warrant summary dismissal." Baumann v. United States, 692 F.2d 565, 571 (9th Cir.1982). Because we hold that Davis's second motion does not state a claim for relief and because we may affirm the district court on any grounds supported by the record, Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir.1986), we affirm the district court's dismissal.1

II

Evidentiary Hearing

7

Section 2255 requires the district court to hold an evidentiary hearing "[u]nless the motions and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. Sec. 2255; see also Rule 4(b), Rules Governing Section 2255 proceedings, 28 U.S.C. foll. Sec. 2255. The district court may deny a section 2255 motion without an evidentiary hearing only if the movant's allegations, viewed against the record, either do not state a claim or are so palpably incredible or patently frivolous as to warrant summary dismissal. Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985).

8

Because we agree that Davis's claims lack merit, we affirm the district court's denial of his section 2255 motion without an evidentiary hearing.

III

Defective Guilty Plea

9

Fed.R.Crim.P. 11(f) requires the district court to make "such inquiry as shall satisfy it that there is a factual basis for the plea." Rule 11 does not require a specific method for establishing a factual basis as long as the judge is satisfied that there is sufficient evidence to support the conclusion that the defendant is guilty. United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir.1983), cert. denied, 467 U.S. 1215 (1984).

10

Davis first alleges that there was no factual basis for his guilty plea because it was not clearly established that the banks that he attempted to rob were federally insured. Nevertheless, the indictment charged, and Davis admitted, that he attempted to rob two Bank of America branches whose deposits were insured by the Federal Deposit Insurance Corporation ("FDIC"). During the plea hearing, the court specifically asked Davis if he agreed that both banks were FDIC-insured, and Davis agreed. Immediately thereafter, the prosecution stated that it could introduce evidence showing that the banks were insured by the FDIC. We hold that the district court sufficiently established that the banks were federally insured.

11

Davis also alleges that there was no factual basis for his guilty plea because it was not established that he had the intent to rob the banks. Davis apparently argues that he changed his mind about robbing the bank, but admits that he walked into both banks and handed the tellers notes demanding money. Moreover, he expressly admitted during his plea hearing that he intended to rob the banks. Accordingly, we hold that there was a sufficient factual basis for the guilty plea.

IV

Ineffective Assistance of Counsel

12

Davis contends that by failing to ensure that there was a factual basis for his guilty plea, his counsel rendered him ineffective assistance of counsel. Because Davis's argument that his guilty plea was defective lacks merit, his claim of ineffective assistance of counsel also fails. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

13

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

In its brief on appeal, the government does not argue that Davis's second motion was successive but instead addresses his motion on the merits. Moreover, in its order denying the second motion, the district court apparently addressed the merits of Davis's claims by stating that it had fully complied with the requirements of Rule 11, that there was no showing that counsel was ineffective, that Davis clearly agreed that the bank was federally insured, and that no evidentiary hearing was required because the record conclusively showed that Davis was not entitled to relief