Alford v. Rolfs, 87-3919

• Citation: 867 F.2d 1216
• Decision Date: 12 July 1988
• Docket Number: No. 87-3919,87-3919
• Parties: Richard Lee ALFORD, Petitioner-Appellant, v. Tom ROLFS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1216

867 F.2d 1216

Richard Lee ALFORD, Petitioner-Appellant, v. Tom ROLFS, Respondent-Appellee.

No. 87-3919.

United States Court of Appeals Ninth Circuit.

Argued Feb. 3, 1988.

Submitted July 12, 1988 ^*.

Decided Feb. 9, 1989.

Barbara A. Laners, Seattle, Wash., for petitioner-appellant.

Theresa L. Fricke, Asst. Atty. Gen., Dept. of Corrections, Olympia, Wash., for respondent-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before FLETCHER, LEAVY ^**, Circuit Judges, and CARROLL ^***, District Judge.

LEAVY, Circuit Judge:

This is an appeal from a district court decision denying Alford's petition for federal habeas corpus relief. Alford was convicted in the State of Washington for possessing stolen property. Based on Alford's felony record, the Washington trial court found Alford to be an habitual criminal, and sentenced him to life in prison with possibility of parole. The Washington Court of Appeals first vacated the sentence, but, in a clarifying decision, upheld the habitual criminal finding and life sentence. Alford sought habeas corpus relief in the United States District Court after exhausting his state remedies. The district court denied the petition. We affirm.

FACTS

In November 1978, a jury found petitioner Richard Lee Alford guilty of possessing stolen property worth approximately $17,000, a felony. At the time of Alford's conviction, the Washington habitual criminal statute provided in relevant part:

Every person convicted in this state of ... any felony, who shall previously have been twice convicted ... of any crime which under the laws of this state would amount to a felony, ... shall be punished by imprisonment in the state penitentiary for life.

R.C.W. 9.92.090 (West 1988). ¹ Alford had previously been convicted of the following felonies: (1) possession of a controlled substance, in violation of the Uniform Controlled Substances Act (UCSA), in 1978; (2) delivery of heroin and possession with intent to deliver heroin, in violation of UCSA, in 1972; and (3) first degree forgery, in 1964.

In May 1979, the state trial judge found Alford to be an habitual criminal, and sentenced him to life imprisonment. ² In the direct appeal Alford, through his attorney Lewis H. Nomura, attacked the prior convictions underlying the habitual criminal finding.

The court of appeals held that Alford's 1964 forgery conviction was defective and could not be used in the habitual criminal proceeding. The court vacated the life sentence and remanded for resentencing. The state moved to recall the court's mandate and for a clarification of the decision, since the two other UCSA convictions were sufficient to uphold the habitual criminal finding. The court of appeals granted the motion, and allowed Alford to file a supplemental brief through his new attorney, Michael Filipovic. The court then modified its decision and upheld the habitual criminal finding and life sentence. Alford moved for reconsideration in the court of appeals, and petitioned for review and a personal restraint in the Washington Supreme Court. All petitions were denied.

On June 25, 1986, Alford filed this habeas corpus petition in the United States District Court. The district court denied the petition. Alford appeals.

STANDARD OF REVIEW

We review de novo a district court's denial of a habeas corpus petition. Bayramoglu v. Estelle, 806 F.2d 880, 886-87 (9th Cir.1986).

DISCUSSION

Habeas corpus relief is appropriate only if a prisoner is held in custody in violation of the Constitution or laws or treaties of the United States. Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 1567, 71 L.Ed.2d 783 (1982). Alford raises three claims under the Constitution. He claims that the habitual criminal finding was flawed as a matter of Washington law, and in violation of his due process and equal protection rights under the Constitution's fifth and fourteenth amendments. Alford also argues violations of his sixth amendment right to counsel. Finally, he claims the life sentence imposed upon him violates his eighth amendment right to be free from cruel and unusual punishment.

I. The habitual criminal finding

Alford contends that, in upholding his habitual criminal finding, the Washington Court of Appeals denied him a constitutionally required due process hearing. Alford claims that the court of appeals denied him the opportunity to argue that Washington law required reversal of the habitual criminal finding. ³

Alford's claim is contradicted by the record. The court of appeals first vacated Alford's sentence to life imprisonment. After granting the state's motion to clarify its decision, and before issuing its clarifying decision, the court allowed Alford to file a supplemental brief. In that brief, Alford argued that Washington law required reversal of the habitual criminal finding, the very issue on which he now claims he was denied a hearing. That the court of appeals was not persuaded, and affirmed the habitual criminal finding and life sentence, does not mean Alford lacked a due process hearing.

Alford argues that the Washington Court of Appeals denied him equal protection of the laws by treating him differently from other Washington defendants who appeal habitual criminal findings. ⁴ Alford refers us to Washington case law, where defendants appealing habitual criminal findings have succeeded in obtaining reversal of the findings. ⁵

Alford's equal protection claim is without merit. The Supreme Court has said that "[the Equal Protection Clause of] the Fourteenth Amendment does not 'assure uniformity of judicial decisions ... [or] immunity from judicial error....' [O]therwise, every alleged misapplication of state law would constitute a federal constitutional question." Beck v. Washington, 369 U.S. 541, 554-55, 82 S.Ct. 955, 962-63, 8 L.Ed.2d 98 (1962) (quoting Milwaukee Electric Ry. & Light Co. v. Wisconsin ex rel. Milwaukee, 252 U.S. 100, 106, 40 S.Ct. 306, 309, 64 L.Ed. 476 (1920)). See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985) (habeas corpus relief "is unavailable for alleged error in the interpretation or application of state law").

Finally, Alford contends that the habitual criminal finding was unsupported by the evidence. Aside from the invalid forgery conviction, two prior UCSA violations support this finding. Alford claims that the 1978 UCSA conviction was not introduced into evidence at his habitual criminal trial, and that therefore the single remaining UCSA conviction is insufficient to support the finding.

The record supports the habitual criminal finding. In Washington, whether the state proves the convictions necessary to support a habitual criminal finding is a question of fact. See State v. Hennings, 100 Wash.2d 379, 382, 670 P.2d 256, 257 (1983) (en banc). In habeas corpus proceedings, we presume a state court's finding of fact to be correct, unless a 28 U.S.C. Sec. 2554(d) factor is present, ⁶ or the finding is not fairly supported by the record. Sumner v. Mata, 455 U.S. 591, 592, 102 S.Ct. 1303, 1304, 71 L.Ed.2d 480 (1982).

The record here reveals that the 1978 conviction was received in evidence, without objection, at a motion immediately prior to the habitual criminal trial. The bench trial was before the same judge who presided at the pretrial motion. During trial, the parties and the trial judge assumed that the conviction was in evidence, since the parties stipulated that Alford was the person convicted for the 1978 UCSA violation. Verbatim Record of Proceedings, April 30, 1979, at 45-46. We conclude that no Sec. 2254(d) factor is present. Although the evidentiary status of the 1978 conviction at trial could have been made clearer, the trial court's finding that the 1978 conviction had been proven beyond a reasonable doubt is fairly supported by the record.

II. Right to counsel

Alford's habitual criminal trial followed his conviction for possessing stolen property. He was found an habitual criminal, and he appealed through his attorney Louis H. Nomura. Nomura, however, did not assign as error a certain jury instruction given at the trial for possession of stolen property. The Washington Court of Appeals first vacated Alford's sentence to life imprisonment, but then granted the state's motion to clarify its ruling. Before issuing its clarifying decision, however, the court allowed Michael Filipovic, Alford's new attorney, to file a supplemental brief, where Filipovic presented the issue of the claimed erroneous instruction.

The court of appeals affirmed the habitual criminal finding and sentence without discussing the jury instruction issue. Alford now argues that Nomura's failure to raise the instruction issue amounts to either an absolute denial of counsel or to ineffective assistance of counsel, in violation of his sixth amendment rights.

Alford was not denied counsel. Alford was represented on appeal by two attorneys, Mr. Nomura and Mr. Filipovic. Alford's theory appears to be that Nomura was so incompetent that his assistance was equivalent to denial of assistance. Even if we concede for the purposes of argument that incompetence can constitute denial of counsel, we do not agree that Nomura's assistance was totally ineffectual since he successfully attacked one of Alford's prior felony convictions. Alford's theory also ignores Mr. Filipovic's role as counsel during the appeal. We are therefore convinced the proper inquiry under these facts is whether Alford was ineffectively assisted by counsel on appeal.

To claim ineffective assistance of counsel, a petitioner must show (1) incompetent professional assistance; and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 690-92, 104 S.Ct. 2052, 2066-67, 80 L.Ed.2d 674 (1984). We have extended the Strickland analysis to appeals. United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986). We conduct the ineffectiveness inquiry de novo. Id.

Applying the Strickland test, we find Alford's ineffective...