36 F3d 1103 Lemke v. United States

36 F.3d 1103

William E. LEMKE, Petitioner-Appellant,
UNITED STATES of America, Respondent-Appellee.

No. 94-55259.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 14, 1994.*
Decided Sept. 19, 1994.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: BROWNING, WRIGHT, and CANBY, Circuit Judges.

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William E. Lemke appeals pro se the denial without a hearing of his Sec. 2255 petition. He claimed that his trial attorney failed to tell him of a plea offer from the prosecutor prior to trial. We have jurisdiction under 28 U.S.C. Sec. 2255 and affirm.


Section 2255 requires a hearing to determine the merits of the petition if he states a claim of ineffective assistance. United States v. Blaylock, 20 F.3d 1458, 1465-66 (9th Cir.1994) (citing Strickland v. Washington, 466 U.S. 668, 687-90 (1984) (ineffective assistance requires deficient performance by counsel and prejudice to defendant)). We review for abuse of discretion the denial of a hearing. Id. at 1464.


Lemke alleged counsel error. Indeed, his trial attorney's guarded affidavit strongly suggests that the plea was not timely communicated to Lemke. He satisfied the first prong of Strickland for hearing purposes.


To satisfy the second prong, he must allege prejudice, i.e., that the outcome would have been different but for his attorney's mistake. See Blaylock, 20 F.3d at 1466-68 (defendant showed prejudice by alleging would have accepted plea if he had known of it). Judge Stotler correctly ruled that Lemke never indicated that he would have accepted the plea. His colorful pleadings studiously avoid alleging that he would have accepted the uncommunicated plea, despite a warning from the government that he ought to under Strickland. He failed to allege prejudice.




The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4. Lemke's request to appear is denied

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3