Unpublished Disposition, 859 F.2d 154 (9th Cir. 1985)

The Court in Sanders was merely paraphrasing the language of the then-pertinent habeas corpus statutory provision, which at the time governed successive habeas corpus petitions for both state and federal prisoners. In 1966, Congress carefully reviewed and amended the habeas corpus statutes, including section 2244(b) of Title 28, the provision which today governs successive habeas corpus applications by state prisoners.¹  Although section 2244(b) makes no reference to the "ends of justice," but rather merely provides that federal courts "need not" entertain "subsequent applications" from state prisoners "unless the application alleges and is predicated on a factual or other ground not adjudicated on" the prior application, the Supreme Court has held that the "ends of justice" requirement of Sanders, a case in which the habeas corpus applicant was a federal prisoner, applies to successive habeas applications by state prisoners as well.²  See Kuhlmann v. Wilson, 477 U.S. 436, 451 (1986). Thus, the three-prong Sanders test remains the standard by which to judge successive habeas corpus applications filed by both federal and state prisoners. We now apply this test to Kurbegovich's case.

In his earlier habeas corpus petition, filed in October, 1984, Kurbegovich raised two claims. The first was that the trial court erred when it ruled that Kurbegovich was competent to stand trial even though Kurbegovich presented "new evidence" during trial that he was then insane and incompetent. The second claim was that Kurbegovich was denied his right to effective assistance of counsel when the trial court refused to appoint advisory counsel after Kurbegovich exercised his right to appear pro per.

The district court conducted a de novo review of these claims and, on December 18, 1985, incorporated the recommended findings of fact and conclusions of law stated in the Report and Recommendation of the United States Magistrate into a final judgment rejecting Kurbegovich's claims. The magistrate had concluded that the first claim essentially charged that Kurbegovich had been denied a fair trial because he was not afforded an additional hearing on his competency to stand trial. Such a hearing is constitutionally required whenever there is substantial evidence that a defendant may be mentally incompetent to stand trial. After reviewing the entire record of the trial court, the magistrate found that a reasonable trial judge would not have had a genuine doubt as to Kurbegovich's competency to stand trial, and so rejected Kurbegovich's first claim.

As to Kurbegovich's second contention, the magistrate concluded that while Kurbegovich had a constitutional right to appear pro per, and a constitutional right to effective assistance of counsel, those rights are disjunctive. Moreover, the magistrate reasoned, there is no constitutional right to advisory counsel. Thus, the magistrate decided that Kurbegovich had not been denied his right to effective assistance of counsel.

In the instant habeas corpus application, Kurbegovich raises essentially the same issues he raised in 1984. In essence, he argues that he was insane and incompetent at trial, and--as such--should have been stripped of his pro per status and been appointed counsel. The magistrate in the first habeas corpus action expressly held that there was no evidence to create a doubt as to Kurbegovich's competency at the time of trial. Nor has Kurbegovich presented new factual evidence suggesting otherwise. Thus, this issue has already been decided on the merits in an earlier habeas corpus action. Moreover, Kurbegovich's contention in the instant habeas corpus petition presumes that the trial judge could have denied Kurbegovich the right to represent himself. The magistrate in the first action, however, noted that the "right to appear pro se is constitutionally guaranteed, Faretta v. California, 422 U.S. 806 (1975)." Thus, it appears that the claims Kurbegovich makes now were already considered, and rejected on the merits, in an earlier habeas proceeding.

Turning to the third prong of the Sanders test, we believe that revisiting Kurbegovich's previously adjudicated claims now would not serve the "ends of justice." Although the district court, in dismissing Kurbegovich's instant habeas corpus petition, did not make an "ends of justice" determination, we believe that the Supreme Court's decision in Kuhlmann controls the issue. In Kuhlmann, the Court held that " 'the ends of justice' require federal courts to entertain [claims adjudicated in a prior habeas proceeding] only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence." 477 U.S. at 454. Since Kurbegovich has not even attempted to make such a showing, the district court's dismissal was proper.

AFFIRMED.