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876 F2d 897 United States v. S Dost M

876 F.2d 897

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Robert S. DOST, a/k/a John M. Peterson, Defendant-Appellant.

No. 88-6464.

United States Court of Appeals, Ninth Circuit.

Submitted* May 2, 1989.
Decided June 6, 1989.

Before FLETCHER, NELSON and WILLIAM A. NORRIS, Circuit Judges.

1

MEMORANDUM**

2

Petitioner Robert Dost appeals pro se the denial of his petition for writ of habeas corpus. He argues that he was not competent to stand trial or agree to submission on stipulated facts because he was under sedation prescribed by a staff psychiatrist at his correctional center; that his counsel was incompetent in recommending that he accept a trial on stipulated facts that Dost now claims were untrue; that his sentence was unfair in comparison with the sentence received by his codefendant; and that he should have been permitted to introduce expert testimony to show that he was not a pedophile. We affirm in part and reverse in part, and remand to the district court for further proceedings on Dost's claim that he was incompetent to agree to submission on stipulated facts.

FACTS AND PROCEEDINGS BELOW

3

Dost was convicted after a bench trial of conspiracy to exploit children sexually, sexual exploitation of children, and receipt of mail involving sexual exploitation of children, in violation of 18 U.S.C. Secs. 371, 2251(a) and 2252(a). United States v. Dost, 636 F.Supp. 828 (S.D.Cal.1986). The trial was based on stipulated facts concerning Dost's involvement in the photographing of the children. After his conviction was affirmed on direct appeal in an unpublished disposition following the disposition of his codefendant's appeal in United States v. Wiegand, 812 F.2d 1239 (9th Cir.1987), Dost filed a series of motions. Because the government argues that some of the issues Dost asserts before this court are not properly before it, a review of these motions is in order.

4

Dost filed a motion for modification or correction of his sentence, which was denied on August 3, 1987. The basis for this motion is not clear from the record. Dost filed his first habeas petition on December 7, 1987. That petition raised several issues: the exclusion of expert testimony, the validity of the search warrant, a claim that his sentence was overly severe because the district court misunderstood the "nudist lifestyle," incompetence of counsel in insisting that Dost accept certain stipulated facts, and a claim regarding the post-conviction seizure of certain property.

5

Dost filed a second habeas petition on February 17, 1988. This petition is directed at alleged inaccuracies in his presentence report. In an attachment to the petition, he argues that his counsel failed to give him a meaningful opportunity to review his presentencing report, and that he was prejudiced by falsehoods in it. He also alleges his counsel was incompetent in failing to consider "post sentence implications" of the presentence report.

6

In his answer to the government's response to his first petition, Dost alleges for the first time that he was under the influence of a drug which sedated him before and during trial, rendering him incapable of stating his objection to his counsel's strategy or to the stipulated facts. C.R. 117 at 9-11.

7

The two petitions were ordered consolidated, and the consolidated petitions were denied on May 31, 1988. The district court ruled as follows:

8

Regarding the exclusion of expert testimony, the court noted initially that the report Dost wanted admitted was prepared for purposes of sentencing, and did not even exist at time of trial. But even assuming it could have been prepared in time for trial, the issue of whether Dost was or was not a pedophile is irrelevant to the child pornography charges. Dost's argument was based on a misreading of language in Wiegand stating that

9

lasciviousness is not a characteristic of the child photographed but of the exhibition which the photographer sets up for an audience that consists of himself or like-minded pedophiles.

10

Wiegand, 812 F.2d at 1244. Dost argues that if lasciviousness is measured through the eyes of a pedophile, proof that he was not a pedophile would prove that the pictures are not lascivious. Wiegand does not stand for this proposition. It merely notes that the reaction of a pedophile to the picture may be relevant in determining whether the picture is lascivious. Of course, a picture may still be lascivious even if the photographer is not himself a pedophile. The district court's disposition of this issue was correct and is affirmed.

11

Regarding the claim of ineffective assistance of counsel, the district court began by analyzing the claim in reference to the presentence report. Dost alleged in his petition that he was not given the opportunity to go over this report with his counsel. The government responded with an affidavit by the Assistant United States Attorney who handled the trial relating the contents of a conversation she had with Dost's counsel. She reported that Dost's counsel said he did in fact go over the report with Dost. The district court also noted that at the August 4, 1986 sentencing hearing, counsel raised objections to the report and Dost addressed the court. Dost's response is that his counsel is lying.

12

The district court correctly noted that a claim that counsel did not allow the defendant to review a presentence report containing false information states a claim of ineffective assistance. United States v. Donn, 661 F.2d 820, 824 (9th Cir.1981). An evidentiary hearing on a petition is generally required when the defendant's claims are based on occurrences outside the record. Blackledge v. Allison, 431 U.S. 63, 76 (1977); United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir.1989).

13

However, the district court here found that Dost was not actually challenging the presentence report. Instead, Dost was really pointing out errors in the stipulated facts. In essence, Dost claims that all the stipulated facts going to acts which resulted in his conviction were false. Therefore, the district court properly shifted its attention to Dost's arguments concerning the stipulated facts.

14

The district court noted initially that there appears to be no law on the issue of when and how a defendant can challenge his agreement to stipulated facts. Our own research has been equally unavailing. The district court analogized the challenge to a post-conviction challenge to a guilty plea. The analogy is apt. As already indicated, where the defendant alleges improprieties in the plea which require investigation into matters outside the record, an evidentiary hearing is required. See Blackledge and Espinoza, supra.

15

In the case before us the district court saw no reason for an evidentiary hearing, based on its conclusion that Dost did not allege any improper off-the-record communications with counsel. The district court apparently overlooked Dost's argument that the stipulation was an improper basis for conviction because he was under sedation at the time he was advised by his counsel to sign it.

16

Understandably, the district court did not discuss Dost's disparate sentence claim, because it was not presented in either habeas petition or in Dost's responses to the government. Dost filed his Notice of Appeal on July 7, 1988, without specifying the judgment appealed from.

DISCUSSION

17

Denial of a habeas petition is reviewed de novo. Espinoza, 866 F.2d at 1069. A district court may not deny the petition without a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. Sec. 2255.

18

An initial question is posed concerning the scope of this appeal. The time for filing an appeal from a denial of a petition for writ of habeas corpus is 60 days from the court's order. See Fed.R.App.P. 4(a); Rule 11 governing Section 2255 proceedings. The government has assumed that Dost's appeal is from the denial of his consolidated habeas petitions. We accept this characterization of Dost's appeal. As to these petitions the appeal is timely. However, the appeal is not timely from the denial of Dost's motion of August 3, 1987 to modify or correct his sentence. Although unclear from the record, if Dost raised the disparity of his sentence below at all, it would presumably have been at this time.1

19

Dost's remaining claim is quite simple. He alleges that, because he was under sedation, he involuntarily or incompetently agreed to his counsel's trial strategy, notably the acceptance of stipulated facts which Dost now claims were not true, and which were essential to his conviction. The only dispute presently before us is whether he is entitled to a hearing on that claim. Blackledge and Espinoza, as well as the other cases discussing the requirement of an evidentiary hearing on a challenge to a guilty plea,2 mandate such a hearing in this case, where none of the questions raised by Dost's claim of sedation can be answered by recourse to the existing record.

20

The government alleges only that the claim is not substantiated, citing the absence of corroborating affidavits and Dost's seemingly normal behavior at trial. However, the appropriate recourse is not to deny Dost's claim, but rather for the government to move for summary judgment on remand, thereby allowing the petitioner an opportunity to augment the record. Blackledge, 431 U.S. at 80.

CONCLUSION

21

The district court's order of dismissal is affirmed as to the exclusion of expert testimony. Dost's disparate sentencing claim does not appear to be properly before this court; it is meritless in any event. Dost has, however, stated a claim based on his alleged sedation that mandates remand for further proceedings.

22

AFFIRMED in part; REVERSED and REMANDED in part.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Circuit Rule 36-3

1

Dost's claim of disparity would fail in any event. The trial court is permitted to impose disparate sentences upon codefendants, without explanation, so long as the sentence is within statutory limits. United States v. Endicott, 803 F.2d 506, 510 (9th Cir.1986). However, to the extent the disparity was based on the stipulated facts, this claim becomes intertwined with Dost's challenge to that stipulation

2

See, e.g., Mayes v. Pickett, 537 F.2d 1080 (9th Cir.1976); Jones v. United States, 384 F.2d 916, 917 (9th Cir.1967)