United States v. Pettiette , 338 F. App'x 362 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 24, 2009
No. 07-41020
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
REISA LYNN PETTIETTE
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:07-CV-117
USDC No. 6:02-CR-83-2
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Reisa Lynn Pettiette, now federal prisoner # 09677-078, has appealed the
district court’s order denying her motion under 28 U.S.C. § 2255. Pettiette
contends that her attorney failed to advise her adequately about the Sentencing
Guidelines and failed to advise her that she could mitigate her sentence by
entering a guilty plea. She contends also that counsel failed to advise her about
a plea bargain proposed by the Government, pursuant to which she could have
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 07-41020
pleaded guilty to misprision of a felony and would have received a more lenient
sentence. She contends that the district court should not have denied her motion
without holding an evidentiary hearing.
On review of a district court’s denial of § 2255 relief, this court reviews
factual findings for clear error and legal conclusions de novo. United States v.
Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). The district court’s failure to hold an
evidentiary hearing is reviewed for an abuse of discretion. Id. “To establish
abuse of discretion, a petitioner must present ‘independent indicia of the likely
merit of [her] allegations.’” Id. (quoting United States v. Edwards, 442 F.3d 258,
264 (5th Cir. 2006); pronoun modified)). The district court must review the
record and any materials submitted by the parties, including affidavits, to
determine whether an evidentiary hearing is warranted. Rules 7(b) and 8(a) of
the R ULES G OVERNING S ECTION 2255 P ROCEEDINGS; see also Cavitt, 550 F.3d at
442.
To prove that her counsel was ineffective, Pettiette must show that
counsel’s performance was deficient and that his deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A
movant’s claim of ineffective assistance of counsel must be stated with
specificity; “conclusional allegations” and “generalized assertions” will not
suffice. United States v. Demik, 489 F.3d 644, 646-47 (5th Cir.), cert. denied, 128
S. Ct. 456 (2007). “The district court need not hold an evidentiary hearing to
resolve ineffective claims where the petitioner has failed to allege facts which,
if proved, would admit of relief.” United States v. Fields, ___ F.3d ___, No. 07-
10384, 2009 WL 975806, at *7 (5th Cir. Apr. 13, 2009) (quotation marks and
brackets omitted). If this court “can conclude as a matter of law that the
petitioner cannot establish one or both of the elements necessary to establish
[her] constitutional claim, then an evidentiary hearing is not necessary.” Id.
(quotation marks and brackets omitted; pronoun modified).
No. 07-41020
Because Pettiette’s drug use while on pretrial release and obstruction of
justice would have disqualified her from receiving an adjustment for acceptance
of responsibility, she cannot show that she was prejudiced by her attorney’s
failure to advise her that she could qualify for an adjustment for acceptance of
responsibility by entering a guilty plea. See United States v. Rickett, 89 F.3d
224, 227-28 (5th Cir. 1996). For that reason, Pettiette cannot show that the
district court abused its discretion in rejecting this ineffective-assistance-of-
counsel claim without benefit of an evidentiary hearing. See Fields, 2009 WL
975806 at *7; Cavitt, 550 F.3d at 435, 441-42. Because the record does not
contain independent indicia of the likely merit of Pettiette’s contention that she
was not made aware of the Government’s proposed plea bargain offer, Pettiette
cannot show that the district court abused its discretion in denying her § 2255
motion without holding an evidentiary hearing as to this ineffective-assistance-
of-counsel claim. See Cavitt, 550 F.3d at 435, 441-42. The district court’s order
denying Pettiette’s § 2255 motion is AFFIRMED.
Pettiette’s motion for appointment of counsel is DENIED. See United
States Tubwell, 37 F.3d 175, 179 (5th Cir. 1994).