Unpublished Disposition, 869 F.2d 1497 (9th Cir. 1989)

MEMORANDUM^** 

STATEMENT OF FACTS

Appellant David J. Mireles pleaded guilty in Nevada state court to the crimes of sexual assault and burglary. Through careful and extensive questioning on the record, the trial judge determined that Mireles made his plea freely and voluntarily, uninfluenced by any threats or promises, and with an awareness of the consequences of his plea. Fed. R. Crim. P. 11. The court accepted the plea and in exchange the State dismissed another charge of sexual assault and two unrelated drug charges.

Prior to sentencing however, Mireles sought to withdraw his guilty plea on the grounds that his attorney had coerced him into making the plea and had misinformed him that he would only receive a five year sentence. He claimed he was first notified of the plea bargain negotiations on the day of his trial when his attorney stated "we're going to enter a plea bargain because you'll be out in five years instead of getting life." According to Mireles, the attorney threw an empty file folder onto the conference table and stated that he had "no defense for you." Mireles also claimed that the attorney brought Mrs. Mireles into the room and, in an effort to convince him to accept the plea bargain, ordered her to " [t]ell your husband that you can wait for him for five years, but you can't wait for him forever." Finally, Mireles maintained that his attorney coached him how to respond to the trial judge's questions when he entered his plea.

The trial judge denied Mireles' motion to withdraw his guilty plea. Mireles was later sentenced to life imprisonment with the possibility of parole for the crime of sexual assault and to a consecutive ten year sentence for the crime of burglary. He sought but was denied relief under the Nevada habeas corpus process.

Mireles then sought federal habeas corpus relief, raising three issues: coercion of his guilty plea by his counsel; ineffective assistance of counsel; and abuse of discretion by the trial court for failing to allow him to withdraw his plea. The ineffective assistance claim is grounded in part on the alleged inaccurate advice of counsel with regard to the plea bargain. But Mireles also contends that his attorney failed adequately to investigate and prepare his defense. He claims he told his attorney that two other individuals had perpetrated the crimes for which he was charged, but the attorney failed to investigate that defense.

The district court referred this case to Magistrate Sattler who held an evidentiary hearing at which Mireles and his wife testified to the allegations described above. Leonard P. Smith, the attorney accused of the coercion, also testified, as did Peter J. Christiansen, Mireles' attorney for the drug charges that were dismissed as part of the plea bargain. Christiansen had been present in the room when the alleged coercion took place.

Both attorneys denied Mireles' version of the events. Smith testified that he had discussed the plea bargain with Mireles prior to the date of trial. He denied throwing a file folder onto the table, making the statements attributed to him, coercing Mireles in any way to accept the arrangement, and coaching his client how to respond to the judge. Smith also testified that Mireles had never advised him that two other individuals were responsible for the crime. Instead, Smith conferred with Mireles in jail, and Mireles gave him a three page handwritten statement admitting his guilt to all pending charges and claiming that he was under the influence of drugs and alcohol at the time of the crime. The statement was admitted into evidence at the hearing. Christiansen corroborated Smith's testimony as to the discussion of the plea bargain.

Magistrate Sattler found the testimony of the two attorneys to be "both more creditable and believable" than the testimony of the Mireleses. He also ruled that Mireles' claims had no basis in law. The district court adopted these findings and conclusions of laws, and denied Mireles' petition. We affirm the district court's decision.

ISSUES

The voluntariness of a guilty plea is a question of law subject to de novo review. Marshall v. Lonberger, 459 U.S. 422, 431 (1983); Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986). The findings of historical facts underlying a court's conclusion of voluntariness are given deference in a habeas proceeding. Marshall, 459 U.S. at 431-32; Iaea, 800 F.2d at 864. To determine voluntariness, we examine the totality of the circumstances surrounding the plea. Brady v. United States, 397 U.S. 742, 749 (1970).

In this case, the magistrate specifically found the attorneys' testimony more credible than that of the Mireleses. That finding is well supported by the record, especially the discrepancy between Mireles' claim that others perpetrated the crimes and his written statement admitting guilt. It is unlikely that any of the theatrics he alleges ever occurred.

Given the magistrate's findings, Mireles has failed to show that he was coerced into making a guilty plea. Once his testimony is discredited, there remains only his assertions, on the record in open court, that he knowingly and voluntarily pleaded guilty.

The effectiveness of counsel is a mixed question of law and fact which is reviewed de novo. Reiger v. Christensen, 789 F.2d 1425, 1427-28 (9th Cir. 1986). Mireles cannot support his claim, because his counsel's performance was not deficient. Hill v. Lockhart, 474 U.S. 52 (1985); Strickland v. Washington, 466 U.S. 668, 687 (1984).

A deficient performance is one that does not "fall [ ] within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Counsel must make "errors so serious that she was not functioning as the counsel guaranteed by the Sixth Amendment." Iaea, 800 F.2d at 864 (citing Strickland, 466 U.S. at 687). Yet to avoid the "distorting effects of hindsight," a reviewing court must "indulge a strong presumption" that counsel acted professionally. Strickland, 466 U.S. at 689.

In this case, Leonard Smith's representation of Mireles was not deficient. The magistrate specifically found that Smith had neither sprung the announcement of a plea bargain on Mireles nor advised that Mireles would receive a five year sentence for pleading guilty. In addition, Smith need not have investigated the possibility that others were responsible for the crimes when Mireles had admitted his guilt. Moreover, Mireles cannot blame Smith for seeking a plea bargain or for the terms he obtained. Mireles had admitted his guilt and his proffered justification--voluntary intoxication--was not a valid defense under Nevada law. See N.R.S. Sec. 193.220. By entering a guilty plea, Mireles avoided prosecution on the charge of sexual assault with use of a deadly weapon, which carried a potential penalty of two life terms. The plea bargain was in his best interest.

Mireles' claim on this issue is derivative of his two other claims, i.e., if his guilty plea were constitutionally invalid because of coercion or ineffective assistance of counsel, then the Nevada trial court acted unconstitutionally by denying his motion to withdraw his plea. Because we find that Mireles' plea was constitutionally valid, then he has no valid claim on this issue. Even assuming arguendo that the trial court abused its discretion under Nevada state law, that ruling is not cognizable on federal habeas corpus review because it did not implicate Mireles' federal constitutional rights.

AFFIRMED.