878 F2d 1438 Bryant v. Borg

878 F.2d 1438

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Reginald M. BRYANT, Petitioner-Appellant,
v.
Robert BORG, Warden; Attorney General of the State of
California, Respondents-Appellees.

No. 88-6313.

United States Court of Appeals, Ninth Circuit.

Submitted* June 26, 1989.
Decided June 30, 1989.

Before GOODWIN, Chief Judge, and NELSON and BOOCHEVER, Circuit Judges.


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1

MEMORANDUM**

2

Appellant Reginald M. Bryant appeals pro se from a judgment dismissing his petition for a writ of habeas corpus. For the reasons stated below, we affirm the judgment of the district court.

3

Appellant was charged in Los Angeles County Superior Court with two counts of murder under California Penal Code Sec. 187. Special circumstances allegations were also filed, pursuant to California Penal Code Sec. 190.2(a)(3), (15), because double murders were involved and one of the killings was perpetrated by lying in wait. If these special circumstances were found to be true, the result would be a sentence of life imprisonment without the possibility of parole.

4

Appellant pleaded guilty to one count of first-degree murder and one count of second-degree murder in exchange for the state's agreement to drop the special circumstances allegations. The trial court accepted the plea and sentenced appellant to state prison for seven years for the second-degree murder and twenty-five years to life for the first-degree murder. In addition, the trial judge advised appellant that he would have to serve a minimum of 16 and two-thirds years before he would be eligible for parole. The court also advised appellant that when, if ever, he might be paroled would be up to the authorities. Appellant responded that he understood this.

5

Bryant's petition raises two claims: (1) that his guilty plea was not voluntary and intelligent; and (2) that he did not receive effective assistance of counsel.

6

1. Appellant's guilty plea was voluntary and intelligent.

7

The finding of the United States District Judge regarding the voluntariness of a guilty plea is reviewed de novo. Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir.1986), cert. denied, 108 S.Ct. 198 (1987). Appellant contends that his plea was not voluntary and intelligent for two reasons. First, appellant alleges that he believed, at the time he pleaded guilty, that sixteen and two-thirds years was the maximum sentence he would serve. Second, appellant asserts that he was not told that he was giving up his right to appeal.


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8

These claims are both without merit. First, the trial judge was extremely thorough in his questioning of appellant's knowledge of the charges to which he was pleading guilty, and of appellant's understanding of the sentence that would be imposed. The judge made it very clear that appellant's minimum sentence to be served was 16 and two-thirds years. The relevant portion of the trial judges questioning is as follows:

9

THE COURT: That would mean you'd have to serve a minimum of 16 and two-thirds years in the State Prison. Do you understand that?

10

DEFENDANT: Yes, I do.

11

THE COURT: When, if ever after that you be paroled, is up to the authorities, and nobody can predict for you when that will be. Do you understand that?

12

DEFENDANT: Yes, I do.

13

The record in this case clearly establishes that appellant's guilty plea was made voluntarily and intelligently as required by Boykin v. Alabama, 395 U.S. 238 (1969), and applied by this court in United States v. Goodheim, 686 F.2d 776 (9th Cir.1982); see also Willkins v. Erickson, 505 F.2d 761, 763 (9th Cir.1974) (the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily).

14

Appellant's second contention, that his plea was not voluntary and intelligent because he was not advised that he was giving up his right to appeal, is also without merit. Although it is somewhat difficult to discern the exact nature of appellant's argument, we conclude that the trial judge had no duty to inform Bryant that he was giving up his right to appeal. A state court is not required to enumerate all of the rights which a defendant waives when he enters a guilty plea as long as the record indicates that the plea was entered voluntarily and understandingly. Rodriguez v. Ricketts, 798 F.2d 1250, 1254 (9th Cir.1986), cert. denied, 479 U.S. 1057 (1987); see also United States v. Freed, 703 F.2d 394, 395 (9th Cir.), cert. denied, 464 U.S. 839 (1983).

15

Both appellant and appellee rely on Marrow v. United States, 772 F.2d 525 (9th Cir.1985), in addressing appellant's argument regarding the duty to advise of appeal rights. However, Marrow is not applicable to appellant's argument here since that case involved the issue of whether a defendant must be informed of his appeal rights after he has already pleaded guilty. Marrow thus did not address the question of whether a defendant must be informed of the appeal rights he is waiving before he pleads guilty. At any rate, Marrow held that counsel has no duty to advise a defendant of his appeal rights unless the defendant inquires or the circumstances indicate that the defendant would benefit from such advice. Id. at 528; see also Fed.R.Crim.P. 11, 32(a)(2). There is no indication that Bryant ever inquired as to his appeal rights; nor do the circumstances indicate that he would have benefited from such advice. Bryant faced a life sentence without the possibility of parole if he had not pleaded guilty and had been convicted of the two murder counts with special circumstances. Given Bryant's incriminating admissions regarding the crimes and the unavailability of any defenses, there was no duty under Marrow to advise appellant of his appeal rights.

16

2. Appellant did not receive ineffective assistance of counsel.

17

A claim of ineffective assistance of counsel presents a mixed question of law and fact which is reviewed de novo. Strickland v. Washington, 466 U.S. 668, 698 (1984).

18

Appellant contends he did not receive effective assistance of counsel for several reasons. First, he claims that his attorney did not properly advise him of the amount of time he would have to serve. Second, Bryant alleges that his counsel was not diligent in the investigation of his case, having only met with appellant for a short period before the hearing. Third, Bryant claims that his attorney was ineffective in not advising him of the appeal rights he waived by pleading guilty.

19

Appellant's first claim is without merit. Even assuming that his attorney did not properly advise him regarding the sentence which would be imposed after his guilty plea, Bryant's claim must still fail. We held in Chau Hon Mow v. United States, 730 F.2d 1308 (9th Cir.1984), cert. denied, 470 U.S. 1031 (1985), that even if the defendant's counsel did not properly advise him regarding his sentence, the defendant could not assert a claim of ineffective assistance of counsel on this ground where the sentencing court did inform the defendant. Id. at 1311. Similarly, in this case, before accepting Bryant's guilty plea, the trial judge thoroughly informed Bryant of the sentence that would be imposed. Bryant is thus precluded from raising this claim.

20

Bryant's second claim, that his attorney did not diligently pursue his case and was therefore ineffective, also fails. Counsel may advise defendant to plead guilty if that advice falls within the range of professional competence. United States v. Rogers, 769 F.2d 1418, 1424 (9th Cir.1985) (citing United States v. Cronic, 466 U.S. 648 (1984)). Counsel's advice in this case was well within the range of professional competence given appellant's incriminating admissions regarding the murders. Also, counsel did first investigate the possibility of raising insanity or diminished capacity defenses. These proved unavailable, and appellant faced a life sentence with no parole if convicted. Advising appellant to plead guilty in return for a chance to be paroled in 16 and two-thirds years was professionally competent advice in this case.

21

Additionally, appellant's contention that the few minutes he met with his attorney rendered the assistance ineffective is also without merit. The record does not reveal that this amount of time was inadequate for counsel to render effective assistance. Appellant has failed to point to any benefit he might have received from a longer consultation. See Rogers, 769 F.2d at 1425. The record clearly indicates that appellant's counsel was diligent in his investigation of appellant's case. There is simply no indication that counsel's performance was deficient, or that appellant was prejudiced by his performance. See Strickland, 466 U.S. at 700.

22

Appellant's final contention, that his counsel was ineffective in failing to advise appellant of the effect of his guilty plea on his appeal rights, fails for essentially the same reasons as did his argument that this failure rendered his plea involuntary. Specifically, Bryant contends that counsel had a duty to help him apply for a certificate of probable cause, which, under California Penal Code Sec. 1237.5, would permit an appeal from a guilty plea. Because this issue thus turns on the extent to which an attorney must inform a client of his appeal rights after he has already pleaded guilty, Marrow is plainly applicable. Since appellant neither inquired as to his rights on appeal, nor demonstrated that he would have benefited from the advice, counsel had no duty to do so. Marrow, 772 F.2d at 528. Indeed, we note that under California law, a defendant must make a timely request for assistance from his trial attorney when seeking a certificate of probable cause. People v. Ribero, 4 Cal.3d 55, 65, 92 Cal.Rptr. 692, 699, 480 P.2d 308, 315 (1971). Counsel's performance was, therefore, not deficient in this regard and appellant's ineffective assistance of counsel claim must also fail.

23

The record supports the District Court's conclusion that counsel's performance was not deficient and that appellant was not prejudiced in any way by his counsel's performance.

24

The judgment of the District Court is AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and 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 Ninth Circuit Rule 36-3