Urbanec v. Lewis
| Decision Date | 11 December 1989 |
| Docket Number | No. 89-15047,89-15047 |
| Citation | 902 F.2d 42 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Albert URBANEC, Petitioner-Appellant, v. Samuel LEWIS, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before POOLE, REINHARDT, and BEEZER, Circuit Judges.
Urbanec is a state prisoner who appeals pro se the district court's denial of his petition for writ of habeas corpus. He challenges his corrected sentence and the voluntariness of his plea, alleging ineffective assistance of counsel. We affirm.
In November, 1975, Urbanec and three women agreed to commit a robbery and steal a car. In the course of the robbery, the victim was killed. Urbanec gave a recorded confession to the police. He was charged with first degree murder, armed robbery, and kidnapping.
Urbanec's attorney advised him that if he went to trial, he would face a possible death penalty. He negotiated a plea agreement under which the armed robbery and kidnapping counts would be dropped and Urbanec would be sentenced to life in prison with no possibility of parole for 25 years. Urbanec pleaded guilty to first degree murder. He admitted to the state court that he intended to rob the victim but, according to Urbanec, he also stated that he did not do the actual killing. Nevertheless, Urbanec did not challenge the presentence report or the government's factual basis for the plea.
The court accepted the plea as voluntary and stated orally that Urbanec would not be eligible for parole for 25 years. The sentence later entered in the record, however, did not mention parole. In 1987, Urbanec discovered the error and began habeas proceedings. He first brought a motion in state court under Ariz.R.Crim.P. 32 challenging his plea and the sentence. The sentence was corrected to conform to the plea agreement. Other challenges brought by Urbanec were denied without an evidentiary hearing. Urbanec's state appeals were dismissed.
In 1988, Urbanec brought this petition for a writ of habeas corpus in federal court. He alleges that the state's correcting the sentence was improper and he should be allowed to replea. He also contends that his plea was involuntary because it was based on erroneous advice from his attorney, who told him that he faced a possible death penalty, failed to advise him that he could not be convicted on the testimony of his accomplices, and failed to pursue an intoxication defense. He also argues that his attorney's conduct raises questions of fact which require an evidentiary hearing, which he has been denied.
We have jurisdiction over this timely appeal under 28 U.S.C. Secs. 2253 and 1291. Urbanec has exhausted his state remedies and a certificate of probable cause was entered on January 10, 1989.
We review the district court's determination of the validity of a guilty plea de novo. Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir.1986). The district court's determination regarding ineffective assistance of counsel is reviewed de novo, although the district court's factual findings are reviewed under the clearly erroneous standard. United States v. Layton, 855 F.2d 1388, 1415 (9th Cir.1988).
Urbanec first challenges the corrected sentence imposed by the state court at the time of his motion under Ariz.P.Crim.P. 32. He argues that because the original sentence did not mention parole it did not conform to the plea agreement; the sentencing court therefore rejected the plea; and by not granting him an opportunity to replea, the state has violated Ariz.R.Crim.P. 17.4(e) ().
We must reject Urbanec's argument. First, correcting the plea did not violate state law. Ariz.Rev.Stat. Sec. 13.4037(A) authorizes the Arizona Supreme Court to correct an illegal sentence to conform to a verdict. The statute has not been limited to acts by the state supreme court. See State v. Gourdin, 156 Ariz. 337, 751 P.2d 997, 999 (App.1988) ().
Arizona courts have also held that failure to mention parole in a sentence does not violate a plea agreement. In State v. Parle, 110 Ariz. 517, 521 P.2d 604, 608 (1974), the court held there was "no such sentence as life imprisonment without parole." The statute under which Urbanec was sentenced specifies the exact sentence for which Urbanec bargained. Ariz.Rev.Stat. Sec. 13-703(A), like former Sec. 13-453, authorizes "custody of the state department of corrections for life, without possibility of release on any basis until the completion of the service of twenty-five calendar years."
Furthermore, in order to state a claim for federal habeas relief, a state prisoner must allege that his detention violates federal law: the federal Constitution, a federal statute, or a treaty. 28 U.S.C. Sec. 2241(c); Rose v. Hodges, 423 U.S. 19, 21 (1975) (per curiam). Interpreting Urbanec's pro se petition and brief liberally, as we must, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we construe Urbanec to allege a violation of his due process rights. Due process requires that a guilty plea be voluntary and knowing. See Boykin v. Alabama 395 U.S. 238, 242 (1969); McCarthy v. United States, 394 U.S. 459 (1969). F.R.Crim.P. 11, after which Ariz.R.Crim.P. 17.4 was patterned, "is designed to assist the [federal] judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary" as well as knowing. McCarthy, 394 U.S. at 465-66, 472 Urbanec does not contend that he did not ultimately get the sentence that he and the state intended. The district court, examining the record, concluded that the judge who accepted the plea and later entered the sentence intended to provide for parole. We see no violation of due process, state law, or the plea agreement. We affirm.
(noting the rule itself has not been held constitutionally mandated); Heiden v. United States, 353 F.2d 53, 55 (9th Cir.1965). Correcting a sentence to conform to a plea does not violate the rule. See United States v. Segal, 549 F.2d 1293, 1296 (9th Cir.1977) ("It is the taking of the plea, not the imposition of sentence or revocation of probation, to which the rule is addressed."). Arizona courts have come to the same conclusion regarding the state rule. State v. Pyeatt, 135 Ariz. 141, 659 P.2d 1286, 1288 (Ariz.App.1982) (purpose of corrective sentence is to reflect intent of the parties); cf. State v. Maricopa County, 125 Ariz. 575, 611 P.2d 928 (1980) (en banc) (court's significantly lower sentence violates plea)
Urbanec next argues that his plea is invalid because he received ineffective assistance of counsel.
To be valid, a guilty plea must be voluntarily and intelligently made by a "competent defendan[t] with adequate advice of counsel." Brady v. United States, 397 U.S. 742, 758 (1970); Torrey v. Estelle, 842 F.2d 234, 237 (9th Cir.1988) (); Tollett v. Henderson, 411 U.S. 258, 265-66 (1973) ().
To establish a claim of ineffective assistance, the petitioner must show that counsel's advise was not "within the range of competence demanded of attorneys in criminal cases," Hill v. Lockhart, 474 U.S. 52 (1985), and that absent the erroneous advice, the defendant would not have pleaded guilty but would have insisted on going to trial. Id. at 59; United States v. Freeney, 841 F.2d 1000, 1002 (9th Cir.1988). See also Strickland v. Washington, 466 U.S. 668, 687 (1984) (); McMann v. Richardson, 397 U.S. 759, 771 (1970) ().
Urbanec first argues that he was "induced" to plead guilty because he was told by his attorney that he faced a possible death penalty. Urbanec argues that this advice was erroneous because in 1975, no Arizona court had imposed the death penalty for the aggravating circumstance of "pecuniary gain" or felony murder.
We must reject Urbanec's argument. The Arizona statute in effect in 1975 provided by its terms that "pecuniary gain" could be an aggravating circumstance justifying the death penalty. Ariz.Rev.Stat. Sec. 13-703(F)(5). The 1975 statute was enacted in 1973 in response to Furman v. Georgia, 408 U.S. 238 (1972), in which the Supreme Court required that state death penalty statutes specify such circumstances. The new "pecuniary gain" provision was not challenged between 1973 and 1975, but the Arizona courts upheld its application at the first opportunity. See State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980) (en banc). Before 1975, however, and after Furman, Arizona courts consistently held the Arizona death penalty statutes to be constitutional. See State v. Richmond, 114 Ariz. 186, 560 P.2d 41, 49-50 (1976) (en banc). Arizona courts had also upheld application of the death penalty to felony murder, even in the case of a guilty plea. See State v. Endresen, 498 P.2d 454 (1972).
Urbanec relies on State v. Verdugo, 112 Ariz. 208, 541 P.2d 388 (1975) (en banc), to support his argument. But the Verdugo court discussed only the aggravating circumstance of placing another in grave danger, finding in the facts of the case a lack of direct evidence of that circumstance. The state simply did not raise the issue of pecuniary gain, even though it could have. See 541 P.2d at 392.
A guilty plea may be...
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