Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1987)

MEMORANDUM^** 

Appellant, who is proceeding in pro per, is currently serving a six-year sentence at the California Institution for Men in Chino for the crimes of assault with a deadly weapon and intentional infliction of great bodily injury to which he pled no contest. He has brought this petition for habeas relief on the grounds of ineffective assistance of counsel, cruel and unusual punishment, and denial of the right to trial by jury. He has also filed a writ of mandate for the production of transcripts from lower court proceedings which the panel has agreed to consider at this time. We affirm the decision below denying the writ of habeas corpus. We deny the writ of mandate at this time and, by separate order, ask the government to show cause why it should not produce the transcripts.

FACTUAL AND PROCEDURAL BACKGROUND

On October 23, 1987, appellant pleaded nolo contendere in state court to assault with a deadly weapon and intentional infliction of great bodily injury. He was sentenced to a period of 6 years of incarceration for the crimes. He thereafter sought habeas relief in the state court of appeal, the California Supreme Court, and the federal district court for the Northern District of California. All three petitions were denied. He now appeals to this court raising a number of claims, several of which were previously rejected below.

DISCUSSION

Appellant alleges police misconduct with respect to his arrest on the evening of February 2, 1986 which violated his 8th Amendment rights. The brief refers to various incidents in support of the claim, e.g. the removal of Smith's prosthesis in the police car, the breaking of his little finger, and insensitivity to the injury to appellant's wrists from the handcuffs.

Egregious as this alleged conduct may be, it cannot be viewed as contravening the 8th Amendment since "Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions." Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979) (emphasis added). Since "a claim under [this] amendment arises only subsequent to conviction," appellant's argument must fail. Soto v. City of Sacramento, 567 F. Supp. 662, 671 (E.D. Cal. 1983).

Under Strickland v. Washington, for appellant to prevail on a claim of ineffective assistance, he must show that counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that but for counsel's professional errors, the result of the proceeding would have been different." 466 U.S. 668, 687-88, 694 (1984). Thus, to satisfy the "prejudice" requirement where a complainant has pled guilty, he must show that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty but insisted instead on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Appellant denigrates the performance of three attorneys who were, at one time or another, connected with this case: Mr. Schnayerson, who was retained at the outset; Ms. Grossman, a public defender who took over when Smith became financially unable to afford private counsel; and Mr. Ogul, another public defender who represented Smith at the sentencing stage of the proceeding. While, as District Judge Smith noted, their performance was "less than exemplary," appellant presents no persuasive evidence that, but for their errors, he would have gone to trial.¹ 

Smith indicates, in this regard, that Grossman advised him to plead "no contest" in light of the severity of the sentence (12 years) to which he would be subject if convicted. This does not, however, constitute ineffective assistance. On the contrary, it is an attorney's job to provide her client with this sort of information and to use it in arriving at a recommendation as to the best course of action. As it turns out, Grossman's alleged estimate of appellant's probable sentence pursuant to his entering a no contest plea was inaccurate; he claims that she told him he would "get two Probation at the most ... [o]r maybe two years at Lompoc at tops." He was, in fact, sentenced to 6 years.

Grossman's miscalculation is insufficient, however, to find that the assistance she provided was constitutionally infirm. There is no indication that she guaranteed Smith anything. She advised him as best she could in accordance with her experience and in consideration of the unpredictability of the system. This was hardly the first, and is certainly not the last, such occurrence.

It is axiomatic that a defendant is not entitled to a trial by jury when he pleads guilty, as Smith did. Seventh Amendment concerns emerge only if a defendant's plea was not free and voluntary. Smith claims, in fact, that his plea was coerced, but he fails to support the claim with any concrete evidence. He merely states, in a conclusory fashion, that his "Three Trial Counsels did not act in any way as a Diligent or Conscientious Advocate on the Behalf of the Appellant Their Client, but instead Acted as Agents for the Prosecution." Id. at 20-21. The Seventh Amendment claim is, in short, without merit.

Appellant has also filed a writ of mandate to compel the production of transcripts from various lower court proceedings. As he is proceeding in forma pauperis, the court may, in its discretion, direct the government to pay for the documents. 28 U.S.C. § 1915(b).

Appellant's request is denied at this time. By separate order, we are asking the government to respond within 14 days as to why it should not produce the transcripts requested.

AFFIRMED, and the Writ of Mandate is provisionally DENIED.