United States of America v. Pedro Cruz-Tercero

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PEDRO CRUZ-TERCERO,
Defendant - Appellant.
No. 10-56982
D.C. Nos. 3:10-cv-00593-WQH
3:07-cr-03021-WQH
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted September 27, 2011**
Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
Federal prisoner Pedro Cruz-Tercero appeals pro se from the district court’s
orders denying his motion under 28 U.S.C. § 2255 and his motion for
reconsideration. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
FILED
OCT 5 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-56982 2
Cruz-Tercero contends that the district court erred by denying his habeas
motion and motion to reconsider because he received ineffective assistance of
counsel when his trial attorneys failed to advise him adequately to accept the plea
agreement offered by the government rather than proceed to trial. The district
court did not err in rejecting this claim because Cruz-Tercero has not shown that
his attorneys’ performance was deficient or that it is reasonably likely that he
would have received a shorter sentence but for his attorneys’ performance. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). The district court did not
abuse its discretion by denying an evidentiary hearing based on the record before
it. See Turner v. Calderon, 281 F.3d 851, 890 (9th Cir. 2002).
To the extent that Cruz-Tercero sought to advance new grounds for relief in
his motion to reconsider, the district court properly denied these claims as an
improper successive § 2255 motion. See 28 U.S.C. § 2255(h); United States v.
Allen, 157 F.3d 661, 664 (9th Cir. 1998).
AFFIRMED.

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