Appeal from the United States District Court for the District of Montana. D.C. No. CR-86-6-PGH. Paul G. Hatfield, District Judge, Presiding.
Before: John F. Kilkenny, Joseph T. Sneed, and Warren J. Ferguson, Circuit Judges. Opinion by Judge Sneed.
John F. Garfield, a federal prisoner, appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate his conviction and sentence. Garfield contends: (1) the district court improperly participated in the plea Discussion in violation of Fed. R. Crim. P. 11(e)(1); (2) he was denied effective assistance of counsel; and (3) the district court failed to make adequate findings regarding disputed information in the presentence report as required by Fed. R. Crim. P. 32.
FACTS AND PRIOR PROCEEDINGS
The United States charged Garfield with two counts of carnal knowledge of a minor female in violation of 18 U.S.C. §§ 1153, 2032, and one count of incest in violation of 18 U.S.C. § 1153 and Mont. Code Ann. § 45-5-507 (1991). Garfield pleaded not guilty to all three counts on February 10, 1986. On April 8, 1986, Garfield changed his plea to guilty on all three counts, pursuant to a plea agreement by which the United States agreed to recommend a sentence not longer than thirty years.
On May 16, 1986, Garfield moved to withdraw his guilty pleas and proceed to trial on the ground that his counsel had not properly advised him regarding the consequences of a guilty plea.*fn1 On May 28, 1986, the court held a hearing on Garfield's motion to withdraw his guilty pleas. At that hearing, the Judge lectured Garfield on the alternate implications of pleading guilty or going to trial. On June 2, 1986, Garfield informed the court that he sought only to withdraw his guilty plea with regard to count III of his indictment. The Judge requested that the three original guilty pleas be withdrawn and entered new guilty pleas on counts I and II.*fn2 On June 3, 1986, Garfield was sentenced to twenty-five years in prison on counts I and II. The court ordered count III of the indictment dismissed on June 4, 1986.
On June 13, 1986, Garfield moved for a reduction of sentence pursuant to Fed. R. Crim. P. 35. The court denied that motion on July 11, 1986. On June 4, 1991, Garfield filed a motion pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence. A sentencing court denied the motion without a hearing on December 30, 1991 and Garfield timely appeals.
JURISDICTION AND STANDARDS OF REVIEW
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction under 28 U.S.C. §§ 1291 and 2255. We review the district court's denial of Garfield's section 2255 motion de novo. Doganiere v. United States, 914 F.2d 165, 167 (9th Cir. 1990), cert. denied, 113 L. Ed. 2d 454, 111 S. Ct. 1398 (1991).