Opinion
No. 08-50011.
Argued and Submitted April 15, 2009.
Filed April 29, 2009.
Jason A. Forge, Esq., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Scott A. Pactor, Esq., Law Offices of Scott Pactor, San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, Thomas J. Whelan, District Judge, Presiding. D.C. No. CR-03-00850-W-3.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Defendant John Harrell appeals the district court's denial of his motion to withdraw his guilty pleas. We affirm.
1. We review for abuse of discretion the district court's denial of Harrell's motion to withdraw his guilty pleas based on ineffective assistance of counsel. United States v. Reyna-Tapia, 328 F.3d 1114, 1117 (9th Cir. 2003). The district court did not abuse its discretion when it determined on the basis of a declaration by Harrell's former attorney and on the basis of documentary evidence presented by Harrell that Harrell's former attorney did not render deficient representation.
2. We review Harrell's due process argument de novo. See United States v. Larson, 495 F.3d 1094, 1101 (9th Cir. 2007). The district court did not violate Harrell's due process rights by refusing to allow Harrell to cross-examine his former attorney, whose sole testimony was that his declaration should be considered signed under penalty of perjury. The district court decided the motion without hearing any oral testimony from witnesses.
AFFIRMED.