Unpublished Disposition, 921 F.2d 280 (9th Cir. 1990)

MEMORANDUM^** 

Harvey Lee Pyne appeals pro se from the district court's denial of his petition for a writ of habeas corpus. Finding that Pyne had exhausted his state remedies, the district court considered and rejected his claims that he was mentally incompetent to enter a guilty plea, and that the state court judge erred in not ordering a competency hearing. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 2253, and, after a careful review of the entire record, we affirm.

BACKGROUND

Pyne pleaded guilty to one felony count. He was represented by a public defender during plea negotiations, and his attorney was present for both the entry of the plea and the sentencing hearing. Before accepting the guilty plea, the judge questioned the appellant at length to determine whether he understood: (1) the offense with which he was charged, and the elements the prosecution would need to prove to convict him; (2) possible defenses to the charge; (3) the constitutional rights he would have to waive to plead guilty; and (4) the fact that the judge was not required to follow the prosecution's sentencing recommendation. In addition, the judge received assurances from Pyne that he had not been coerced into entering the plea, and the appellant confirmed that he signed the plea agreement voluntarily.

After this questioning from the judge, Pyne again entered a plea of guilty. The judge sentenced the appellant to a term of life imprisonment with the possibility of parole after serving a minimum of five years. In his petition for habeas relief, Pyne argues that he was not mentally competent to enter a guilty plea, and that the judge erred by accepting the plea without first ordering a competency hearing.

DISCUSSION

We review the denial of a petition for a writ of habeas corpus de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).

Under Nevada law, a person may not be subjected to punishment if he is incompetent. Nev.Rev.Stat. Sec. 178.400(1). " [I]ncompetent means that the person is not of sufficient mentality to be able to understand the nature of the criminal charges against him, and because of that insufficiency, is not able to aid and assist his counsel in the defense ..." Id. at Sec. 178.400(2). If the trial judge has a doubt about the defendant's competence, he is required to suspend the proceedings until it is determined that the defendant is competent within the meaning of the statute. Id. at Sec. 178.405.

At no point prior to his sentencing did the appellant claim that he was incompetent to enter a plea, and there was no evidence before the judge to support such a claim. Pyne appeared before the judge on four separate occasions, and the judge questioned him at great length. Both the judge and the public defender who represented the appellant indicated in the post-conviction competency hearings that they were convinced that Pyne was legally competent to enter a plea.

In addition to this first-hand evidence of the appellant's competence, the record contains other indications that the appellant was competent to enter a plea. The presentence report notes that Pyne had received an honorable discharge after serving three years in the Army, where he operated heavy machinery in a variety of posts, including West Germany. At the post-conviction hearing, Pyne testified that he had been told that he would be made a sergeant if he reenlisted in the Army, that he held a Nevada driver's license, and that he had provided financialy for his family throughout his adult life.

On appeal to this court, Pyne argues that the presentence report indicates that he had mental problems. The only such mention, however, is the probation officer's recounting of Pyne's own statement that he "snapped due to mental illness." There is nothing in the report, there was nothing before the state court judge, and there is nothing before this court to substantiate these claims.

Based on this evidence, we find that the appellant was indeed competent to enter a guilty plea. Furthermore, we find that there was no evidence that would raise a doubt in the judge's mind such as to require him to suspend the proceedings pending a determination of Pyne's competence. Having determined that the plea was voluntarily entered by a competent defendant who understood both the nature of the charges against him and the implications of his plea, the judge properly accepted the appellant's guilty plea.

Because we agree that the appellant was legally competent to enter a guilty plea, the judgment of the district court denying the petition for a writ of habeas corpus is AFFIRMED.