Unpublished Disposition, 899 F.2d 19 (9th Cir. 1990)

No. 88-5740.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Central District of California; Hon. Richard A. Gadbois, Presiding.

C.D. Cal.

AFFIRMED.

Before SCHROEDER and BEEZER, Circuit Judges, and JOHN P. VUKASIN,^*  Jr., District Judge.

MEMORANDUM^** 

Following a federal magistrate's recommendation, the District Court denied Schrey's petition for habeas corpus relief. We affirm the District Court.

Petitioner Schrey entered a plea of nolo contendere in the Superior Court of Los Angeles County, State of California, to two counts of indecent exposure with prior convictions for the same offense, in violation of California Penal Code Sec. 314(1). Petitioner's conviction was subject to Cal.Penal Code section 3000(a) (West 1982 & Supp.1989) which imposes mandatory parole for a period not to exceed three years.

Schrey contends that his plea of nolo contendere was entered involuntarily because he did not understand at the time he entered his plea that he would have to serve the three year period of parole after his prison term if he was sentenced to state prison. He also claims that had he known of the mandatory parole term he would not have pleaded nolo contendere.

After exhausting his state remedies, Schrey, currently in parole custody of respondent, petitioned the District Court for a writ of habeas corpus pursuant to 28 U.S.C. section 2254. After denying relief, the District Court issued a certificate of probable cause.

Habeas corpus decisions are reviewed de novo. Zimmerlee v. Keeney, 831 F.2d 183, 185 (9th Cir. 1987) (per curiam); Chizen v. Hunter, 809 F.2d 560, 561 (9th Cir. 1986). Also, mixed questions of law and fact are reviewed de novo. Herd v. Kincheloe, 800 F.2d 1526, 1528 (9th Cir. 1986). However, factual findings of a magistrate and a District Court's adoption of such findings, unless clearly erroneous, are presumed to be correct. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986).

Schrey urges this Court to reverse the District Court's denial of his petition for writ of habeas corpus. He alleges that he is entitled to a writ to free him from the mandatory parole sentence because he was not informed of the parole requirement at the time he entered his plea. For this contention he cites Carter.

Schrey's reliance on Carter is misplaced. In Carter petitioner had pleaded to a two year sentence, but had not been informed that he was subject to an additional three year mandatory parole term under California Penal Code section 3000(a). The Court held that the mandatory parole requirement was a direct consequence of the guilty plea. The Court accepted petitioner's contention that he would not have pled if he had known of the three year mandatory probation and concluded, therefore, that the plea was involuntary. Id. at 1376. Accordingly, that panel affirmed the district court's granting petitioner a writ of habeas relief.

In the present case, petitioner entered a plea of nolo contendere. He contends that his case falls within the Carter rule because he did not understand that the mandatory parole term would be served after his sentence. However, the trial court transcript demonstrates that the district attorney, at the direction of the Court, told Schrey that:

The maximum amount of time you could serve on this case would be three years and eight months. That would be the upper term on Count I plus one third the median term on Count II.

If you are sent to state prison, you can be placed on parole for a period of three years. And if you violate the terms of that parole, you can be returned to custody for up to one year for such violation.

The record thus supports the magistrate's finding that petitioner was adequately advised of the three year parole period and no error occurred.

The District Court's denial of habeas corpus relief is AFFIRMED.