Opinion
No. 08-35377.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed January 8, 2010.
Jane Kirk, Assistant U.S., Office of the U.S. Attorney, Yakima, WA, for Plaintiff-Appellee.
Lana Cece Glenn, Law Offices of Lana C. Glenn, Spokane, WA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielsen, District Judge, Presiding. D.C. Nos. 2:07-cv-03043-WFN, 2:03-cr-02193-WFN.
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Federal prisoner Sergio Manuel Cisneros appeals from the district court's order denying his motion for relief under 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Cisneros contends that counsel was ineffective for failing to inform him about the government's plea offer. The district court's determination that counsel discussed the plea agreement with Cisneros was not clearly erroneous. See United States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004). Accordingly, Cisneros has failed to show deficient performance or prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Blaylock, 20 F.3d 1458, 1466 (9th Cir. 1994).
Cisneros next contends that counsel was ineffective for failing to communicate with Cisneros about his case, rendering it impossible for him to make an intelligent decision regarding the plea offer. The district court found that counsel discussed the plea offer with Cisneros, informed Cisneros of the risks of rejecting it, and discussed the strength of the government's case with Cisneros. Counsel's communication with Cisneros did not fall outside "the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
In any event, because Cisneros refused at the time to consider the government's offer, he has failed to demonstrate a reasonable probability that he would have timely accepted the government's offer. See Hill v. Lockhart, 474 U.S. 52, 59-60, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see also Jones v. Wood, 114 F.3d 1002, 1012 (9th Cir. 1997) (finding no prejudice where there was no "reasonable probability that at the time of the offer" the petitioner would have accepted government's plea offer).