MEMORANDUM **
Christopher Mejia appeals the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence for conspiracy to distribute and possess with intent to distribute heroin, attempt to possess with intent to distribute heroin, and possession of a firearm in furtherance of drug trafficking. We review de novo the district courts denial of a § 2255 motion, United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016) (en banc), and its factual findings and credibility determinations for clear error, Jones v. Shinn, 943 F.3d 1211, 1220 (9th Cir. 2019). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.
In his § 2255 motion, Mejia argued that his trial counsel provided ineffective assistance in connection with a plea offer that the prosecutor allegedly made on the eve of trial on July 19, 2013. The district court denied the motion, concluding that there was no basis to believe that the prosecutor made the offer. Mejia then requested a certificate of appealability (“COA”) from the district court. In that request for COA, Mejia argued that trial counsel was ineffective because he failed to discuss a different, June 18, 2013 plea offer with him before it lapsed. The district court denied Mejias request for a COA, and, to the extent that the request for COA advanced “matters that were not addressed in [Mejias] initial filings,” further denied Mejias request as a motion to reconsider dismissal of his § 2255 petition. This court granted Mejias renewed COA, which, like his request for COA before the district court, argued that trial counsel was ineffective for failing to timely present the June 18, 2013 offer.
Assuming without deciding that Mejias claim concerning the June 18, 2013 plea offer is not waived, Mejia cannot succeed on a claim of ineffective assistance of counsel because he cannot prove that his “counsels representation fell below an objective standard of reasonableness” and that there was “a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
There is no evidence that trial counsel did not use the extension granted by the prosecutor at trial counsels request to convey the June 18, 2013 offer to Mejia before it expired, and trial counsel averred that although he communicated this offer to Mejia, Mejia “was not willing to accept” it. Mejias unsupported speculation that the offer lapsed, without more, does not meet his burden of overcoming the “strong presumption that counsel ‘rendered adequate assistance.’ ” United States v. Palomba, 31 F.3d 1456, 1460 (9th Cir. 1994) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052); see Womack v. Del Papa, 497 F.3d 998, 1004 (9th Cir. 2007) (concluding that petitioner failed to demonstrate that he received ineffective assistance in the absence of any evidence beyond his “own self-serving statement” that his attorney rendered deficient performance).
Mejia further failed to show prejudice, the second part of the Strickland framework, because he has not “demonstrate[d] a reasonable probability [he] would have accepted” the June 18, 2013 plea offer, which was open-ended as to sentence length. Missouri v. Frye, 566 U.S. 134, 147, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012).
Mejia also cannot meet Strickland’s standard with respect to the alleged July 19, 2013 offer. The district court did not clearly err in finding that the only formal plea offer the prosecution extended to Mejia was the June 18, 2013 offer communicated to trial counsel in writing via email as there was no evidence—aside from Mejias self-serving declaration—that the prosecution extended an offer with a fixed, ten-year sentence on the eve of trial or at any other time. See Jones, 943 F.3d at 1220; Womack, 497 F.3d at 1004. Neither trial counsel nor the prosecutor had any recollection or documentation of the supposed July 19, 2013 offer. In the absence of any reliable evidence supporting the existence of the alleged July 19, 2013 plea offer, Mejia also cannot show prejudice by demonstrating “a reasonable probability that the plea offer would have been presented to the court ․, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offers terms would have been less severe.” Lafler v. Cooper, 566 U.S. 156, 164, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).
AFFIRMED.