Unpublished Disposition, 912 F.2d 471 (9th Cir. 1990)

MEMORANDUM^** 

Paul D. Williams, a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas petition. He contends that imposition of a 27-year prison term in alleged violation of his plea agreement rendered his guilty plea involuntary. He also contends that he was denied effective assistance of counsel when he entered his guilty plea. We affirm.

In 1980 Williams was charged with two counts of rape and one count each of forcible oral copulation, robbery, and burglary, all committed with the use of a deadly weapon. He initially pleaded not guilty but later changed his plea to guilty and admitted having prior felony convictions. Upon his conviction of the charged offenses, the criminal proceedings were suspended and Williams was committed to Patton State Hospital as a mentally disordered sex offender (MDSO).

In 1985 Williams was returned to court and criminal proceedings were resumed based upon the state hospital's findings that Williams was still a mentally disordered sex offender who was not likely to benefit from further hospital treatment and who posed a danger to others' safety. A different judge from the original trial judge sentenced Williams to a 27-year prison term.¹  The California State Court of Appeal affirmed Williams' conviction and sentence, and the California Supreme Court denied Williams' petition for review.

After exhausting his available state remedies, Williams filed this habeas petition in federal district court.²  The district court denied his petition without an evidentiary hearing. Williams obtained a certificate of probable cause and filed this appeal.

We have jurisdiction under 28 U.S.C. § 2253. We generally review de novo the district court's denial of a petition for a writ of habeas corpus. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). However, findings of fact are reviewed for clear error. Id.

EVIDENTIARY HEARING

Williams contends that his 27-year prison term is a breach of his plea agreement and that because no written record of the plea negotiation hearings is available,³  the state court record is incomplete and he is entitled to an evidentiary hearing to determine whether a plea agreement existed on the sentencing range.

A criminal defendant is entitled to fulfillment of a promise which induced his guilty plea. Santobello v. New York, 404 U.S. 257, 262 (1971) (involving breach of prosecutor's agreement). In a section 2254 habeas proceeding, an evidentiary hearing is required if the petitioner's allegations, if proved, would entitle him to relief and the state court did not reliably find the relevant facts after a full and fair hearing.⁴  Townsend v. Sain, 372 U.S. 293, 312-13 (1963); Van Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir. 1986). A full and fair hearing was not held "unless the state court actually reached and decided the issues of fact tendered by the defendant." Townsend, 372 U.S. at 313-14. Moreover, the state court must have decided the asserted claim on the merits in order to have found the relevant facts. Id. at 314.

Here, when the criminal proceedings were resumed, prior to imposing sentence the state sentencing judge conducted an evidentiary hearing in February 1985 to determine whether the trial judge had made a binding promise as to sentencing range.⁵  At that hearing, at which Williams was represented by counsel, Williams' former trial attorney testified that during plea negotiation discussions, the trial judge had indicated that he was considering an approximately 20-year sentence if he were to impose sentence. However, former counsel also testified that the law at the time prohibited a binding promise as to specific sentence length and that he therefore would not have informed Williams that the judge would be bound by a 20-year sentence. Rather, former counsel testified that he would have advised Williams of the maximum sentence and of the possibility that the judge could impose the maximum sentence. Upon cross-examination, former counsel acknowledged that he and Williams were primarily concerned with having Williams referred for an MDSO examination.

The sentencing court noted that it had also reviewed the plea hearing transcript and found it to be devoid of a binding promise made by the trial judge. The sentencing court concluded that the trial judge had not made a promise as to sentence length which was binding on the sentencing court.⁶ 

Thus, the state sentencing court directly addressed Williams' claim of a plea agreement as to sentencing range and concluded that no binding promise had been made. Because the state court reliably found the relevant facts after a full and fair hearing, a second evidentiary hearing in federal court was not required. See Van Pilon, 799 F.2d at 1338.

GUILTY PLEA

Williams contends that because his guilty plea was induced by the trial judge's alleged promise of a 15- to 20-year sentencing range which was not kept, his guilty plea was not made knowingly and voluntarily.

We review de novo the district court's determination as to the voluntariness of a guilty plea. Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir. 1986), cert. denied, 484 U.S. 871 (1987). A guilty plea must be knowing, voluntary and intelligent. Brady v. United States, 397 U.S. 742, 747-48 (1970). For a guilty plea to be knowing and intelligent, the defendant must understand, among other things, the possible penalty he faces. Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986). A guilty plea is invalid if induced by a promise which renders the plea involuntary. Machibroda v. United States, 368 U.S. 487, 493 (1962); Chizen v. Hunter, 809 F.2d 560, 561 (9th Cir. 1986). To determine the voluntariness of a guilty plea, all of the relevant circumstances surrounding the plea must be considered. Brady, 397 U.S. at 749.

Here, the change of plea form which Williams signed shows that he initialed his acknowledgment that his attorney had informed him, and that he understood, that the maximum possible sentence he faced upon pleading guilty was 50 years. Williams also initialed that portion of the change of plea form which states that he was not induced to plead guilty by any promise of a lesser sentence and that the only promise or plea bargain which formed the basis of his plea was that the judge would commit him for an MDSO examination and hearing.

At the plea hearing, the trial judge advised Williams of a maximum possible 47-year sentence. Williams responded to the trial judge's questioning by stating that he understood what the maximum possible penalty was and that no promise as to the sentence had been made in exchange for his guilty plea. The trial judge stated that the only promise he was making was to refer Williams for an MDSO hearing. The plea hearing transcript is devoid of a binding promise made by the judge as to the sentencing range.

The circumstances surrounding Williams' guilty plea reveal that he knew that the trial judge could impose a maximum 47-year sentence and that the only promise which the trial judge made related to an MDSO hearing referral. Although Williams asserts that his trial counsel told him not to disclose at the plea hearing the trial judge's alleged promise of a specified sentencing range, the record indicates that the trial judge made no such promise. Both on the change of plea form and in open court Williams indicated that no promises as to a sentence had been made. A criminal defendant's statements made contemporaneously with his plea are entitled to great weight. Chizen, 809 F.2d at 562; see Blackledge v. Allison, 431 U.S. 63, 74 (1977). Williams was committed as an MDSO and later received a sentence substantially less than the maximum possible punishment. He received the benefit of his plea bargain. Based upon the circumstances surrounding the guilty plea as disclosed by the record before us, we conclude that Williams' plea was made knowingly and voluntarily. See Brady, 397 U.S. at 749.

INEFFECTIVE ASSISTANCE OF COUNSEL

Williams contends that he was denied effective assistance of counsel because his trial counsel misrepresented that if he pleaded guilty to all of the charges, he would receive a maximum 15-20 year sentence.

A claim of ineffective assistance of counsel is a mixed question of law and fact which we review de novo. Iaea, 800 F.2d at 864.⁷  In support of an ineffectiveness claim, a habeas petitioner must show that his attorney's performance fell below an objective standard of reasonable assistance. Strickland v. Washington, 466 U.S. 668, 688 (1984). A strong presumption exists that counsel's conduct falls within the "wide range of reasonable professional assistance." Id. at 689. If petitioner establishes that counsel's performance was deficient, he must still show that but for counsel's errors, a reasonable probability exists that the outcome of the proceeding would have been different. Id. at 694.

A habeas petitioner would not be entitled to relief merely because his counsel erroneously predicted the favorable consequences flowing from a guilty plea, in contrast to misrepresenting what his sentence in fact would be. Chizen, 809 at 561-62.

Here, the change of plea form, plea hearing transcript, and former trial counsel's sworn testimony before the state sentencing court support the conclusion that the trial judge made no binding promise as to a 15- to 20-year sentencing range and that former counsel did not misrepresent to Williams that such a promise had been made. While former counsel may have informed Williams of the trial judge's indicated sentencing range if the judge were to impose sentence, he did not inform Williams that the judge would be bound by such a range because the law at the time prohibited the promise of a specific sentence length as part of a plea bargain. Thus Williams has failed to establish a claim for ineffective assistance of counsel. See Strickland, 466 U.S. at 687.

AFFIRMED.