Jaysen McCleary v. Reliastar Life Insurance Co.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1476
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Harlan Garcia, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the District of
* South Dakota.
United States of America, *
*
Appellee. *
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Submitted: February 17, 2012
Filed: June 6, 2012
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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
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BENTON, Circuit Judge.
A jury convicted Harlan Richard Garcia of distributing 50 grams or more of
methamphetamine and conspiring to distribute more than 500 grams of
methamphetamine. The district court sentenced him to 135 months’ imprisonment.1
These convictions were affirmed on direct appeal. 562 F.3d 947 (8th Cir. 2009).
Garcia moved under 28 U.S.C. § 2255 to vacate his sentence, alleging ineffective
assistance of counsel. The district court denied his motion and a certificate of
The Honorable Richard H. Battey, United States District Judge for the District1
of South Dakota.

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appealability. This court granted a certificate on whether the district court should
have held an evidentiary hearing before denying the motion. Having jurisdiction
under 28 U.S.C. § 2253, this court affirms.
Garcia’s attorney admits that before trial he miscalculated the criminal history
category, resulting in a higher Guideline range. The attorney advised Garcia of the
higher range when discussing the government’s two proposed plea agreements.
Garcia rejected the agreements because he did not feel he should face the same
amount of prison time as if he went to trial. He was also concerned about facing more
time than his co-conspirators (who had already pled guilty and were cooperating with
the government). Both of the Government’s plea offers required Garcia to sign a
factual basis statement that he twice brought about one pound of meth to Rapid City.
To prove ineffective assistance of counsel, Garcia must show that his counsel
made errors so serious that he was not provided with the “counsel” guaranteed by the
Sixth Amendment, which resulted in a performance so deficient that it deprived him
of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A court need
not address both prongs of the Strickland test if the petitioner cannot meet one of
them. Id. at 697. An evidentiary hearing is required unless the motion, files, and
records of the case conclusively show the defendant is not entitled to relief.
Kingsberry v. United States, 202 F.3d 1030, 1032 (8th Cir. 2000). A petitioner’s
allegations must be accepted as true and a hearing should be held unless they are
contradicted by the record, inherently incredible, merely conclusions, or would not
entitle the petitioner to relief. Engelen v. United States, 68 F.3d 238, 240 (8th Cir.
1995).
During the plea negotiations, Garcia insisted he did not bring meth to Rapid
City. At trial, he testified he “never ever” brought meth into South Dakota. Again
at sentencing, Garcia stated he was “not guilty of bringing drugs to South Dakota.”
Thus Garcia could not sign the factual basis statement required for a plea agreement.
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He cannot prove that he would have pleaded guilty but for his counsel’s erroneous
advice. See Chesney v. United States, 367 F.3d 1055, 1059-60 (8th Cir. 2004)
(prisoner alleged attorney failed to communicate pre-trial plea offer but still could not
demonstrate prejudice under Strickland because he adamantly denied guilt under oath
at trial and the district court correctly concluded he could not establish he would have
accepted plea agreement); Sanders v. United States, 341 F.3d 720, 722-23 (8th Cir.
2003) (denial of §2255 motion without hearing upheld when counsel provided
inaccurate estimate of prison term but at all stages of criminal prosecution, prisoner
showed no indication he would be willing to admit guilt). Cf. Lafler v. Cooper, 132
S. Ct. 1376, 1389 (2012) (even if a defendant shows ineffective assistance of counsel
causing him to reject a plea offer, a trial court may take into account a “defendant’s
earlier expressed willingness, or unwillingness, to accept responsibility for his or her
actions” in exercising discretion whether to vacate the conviction, or leave it
undisturbed).
Garcia also alleges that, during plea negotiations, he was never advised of the
option to enter an open plea and qualify for an acceptance-of-responsibility reduction.
In his brief, he asserts he would have entered an open plea to the conspiracy charge
(but would not have openly pled to the 2005 distributing charge). At sentencing, he
did say that “if I was guilty of some minor minimal things that I done, I am wrong for
that.” However, he went on to say, “But I am not guilty of bringing drugs to South
Dakota. I am not guilty of that.”
Garcia’s counts were grouped for sentencing. An open plea to only one of the
two grouped counts would not qualify him for a reduction for acceptance of
responsibility. See United States v. Wattree, 431 F.3d 618, 622-23 (8th Cir. 2005)
(in multiple-count indictments where counts are grouped for sentencing, the
defendant must plead to all grouped-counts in order to receive acceptance-of-
responsibility reduction; counts that are not grouped together are examined for the
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totality of the circumstances in order to determine an acceptance-of-responsibility
reduction).
Because the record conclusively shows that Garcia is not entitled to relief, no
evidentiary hearing was required.
* * * * * * * *
The judgment of the district court is affirmed.
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