United States Court of Appeals

FOR THE EIGHTH CIRCUIT

__________

No. 11-1476

 __________

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.

___________

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 HonorableRichard H. Battey, United States DistrictJudge for the District 1

of South Dakota.
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 asif 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 defendantshowsineffective 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-ofresponsibility 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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