Gary W. Dash v. United States

32 F.3d 572 Gary W. DASH, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 93-35407. United States Court of Appeals, Ninth Circuit. Submitted Aug. 3, 1994.* Decided Aug. 15, 1994. Before: WALLACE, Chief Judge, HUG and RYMER, Circuit Judges. — 1 — MEMORANDUM** — 2 — Gary Walter Dash appeals pro se the denial of his 28 U.S.C. Sec. 2255 motion. He contends that his sentence should be vacated because (1) the district court incorrectly advised him at the change of plea hearing that his special parole term would be two years and (2) the reporter's transcripts of the plea and sentencing hearings were lost. We review the legal issues presented in a Sec. 2255 petition de novo and the underlying factual findings for clear error. United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993). Because a Fed.R.Crim.P. 11 claim must be resolved by looking exclusively to the proceeding in question, the district court erred by relying on the 1979 plea proceeding and the August 30, 1983 letter. See, e.g., United States v. Gastelum, 16 F.3d 996, 998-99 (9th Cir.1994) (Rule 11 "ensures that a defendant is fully aware of his rights when his plea is entered--that he is aware of them at the time they are being waived. Earlier or later knowledge is insufficient to provide that assurance."). In all other respects, we affirm for the reasons stated in the district court's opinion, which fully and fairly addressed Dash's claims. — 3 — AFFIRMED. Footnotes [-s] * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 [-s-s] ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3