USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-2123

KENNETH BARTLETT,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Walter Jay Skinner, Senior U.S. District Judge]

__________________________

____________________

Before

Torruella, Chief Judge,

___________
Cyr and Stahl, Circuit Judges.
______________

____________________

Kenneth Bartlett on brief pro se.

________________

Donald K. Stern, United States Attorney, and Thomas C. Frongill

_______________
__________________
Assistant United States Attorney, on brief for appellee.

____________________

May 30, 1996

____________________

Per Curiam.
___________

Petitioner Kenneth

Bartlett appeals

from

the

district

pursuant to

court's

28 U.S.C.

summary denial

2255.

We

of

affirm for
______

his

motion

the reasons

given in the district court's Memorandum and Order dated June

20, 1995.

We

add

district court's

address

the

following

failure to

petitioner's

17

years.

counsel's

particular

sentence if

he

was

the

hearing to

induced to

plead

assurance that he would serve

Essentially,

ineffective

concerning

hold an evidentiary

claim that

guilty by his attorney's

comments

petitioner's

assistance

he

in

pled guilty,

argument

only

is

promising

that

him

rendered his

plea

involuntary.

"An evidentiary hearing is

and

files

in

the

case,

or

an

required if the records

expanded

record,

cannot

conclusively

'and

when

relief.'"

resolve

the

substantial issues

allegations

made, if

voluntariness of

(citing Hill
____

v. Lockhart,
________

denied,
______

U.S.

493

developed in

1082

would

75, 78 (1st Cir.

879 F.2d 975, 982 (1st

474

require

U.S. 52,

(1990).

the

the defendant." Panzardi_________

The

Strickland v. Washington, 466

__________
__________

in this context.

material fact,

counsel may undermine

a guilty plea by

Alvarez v. United States,

_______
_____________

applies

true,

United States v. Butt, 731 F.2d

______________
____

1984). "Ineffective assistance of

of

Cir. 1989)

56 (1985)),

two-prong

cert.
_____

inquiry

U.S. 668 (1984),

Therefore, to obtain relief on his

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ineffective assistance claim,

Bartlett is

required to

show

that counsel's assistance fell below an objective standard of

reasonableness, and
___

that,

guilty

but for

that there is

counsel's errors, he

a "reasonable probability

would not

have pleaded

and would have insisted on going to trial." Hill, 474

____

U.S. at 59.

Petitioner

hearing

Our

because

was

not

he failed

1995),

is instructive.

district

court's

alleging

ineffective

grounds

for

adequately to allege any

In his

attorney

the

evidentiary

allege prejudice.

F.3d 1396 (1st

Labonte, we
_______

of

affirmed the

2255

counsel.

petition

was

petition

One of

its

the

"fail[ure]

cognizable prejudice." Id. at 1413.

___

brief, the appellant

had contended

"that his

trial

assured him that his sentence would be no more than

eighteen months, and that

would be

In

assistance of

of

an

v. LaBonte, 70
_______

summary dismissal

denial

to

adequately to

opinion in United States

_____________

Cir.

entitled

there was simply 'no way'

that he

sentenced as a career offender pursuant to U.S.S.G.

4B1.1." Id.
___

In

fact, the

district court

had sentenced

appellant

as

career

offender and

imposed

262-month

sentence.

In finding that appellant had

failed adequately to

allege prejudice, we ruled as follows:

An

attorney's

inaccurate prediction

of

his client's

probable sentence, standing

alone,

not

will

satisfy the

prejudice

prong of the ineffective assistance test.

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Similarly,

[appellant's]

statements

that,

but for

inadequate advice he
not

guilty,

self-serving
his counsel's

would have

unaccompanied

pleaded

by either

claim of innocence or the articulation of

any plausible defense that he

could have

raised had

trial,

he

opted

insufficient to

for

is

demonstrate the required

prejudice.

LaBonte, 70 F.3d at 1413.

_______

In this case, as in LaBonte, the attorney's alleged

_______

assurance that petitioner

does

not

assistance

that

satisfy the

test.

his guilty

advice,"

is

would receive

prejudice

Similarly,

plea

also

prong

a 17-year

of the

petitioner's

"was based

insufficient

ineffective

bare allegation

on counsel's

to

sentence

allege

ineffective

prejudice.

Petitioner

has never

defense that

Therefore,

claimed innocence

he could have raised

petitioner

prejudice.

"[A]

Strickland test
__________

claim."

Id.
___

failing

to

petitioner's

has

failure of

or articulated

if he had gone

failed

adequately

proof on

any

to trial.

to

allege

either prong

of the

defeats an ineffective-assistance-of-counsel

at 1413-14.

hold an

The district court

evidentiary

allegations are

hearing

accepted

did not err in

because, even

as true,

he is

if

not

entitled to relief.

The

summary

petition is affirmed.
________

dismissal

of

petitioner's

2255

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