Unpublished Disposition, 935 F.2d 275 (9th Cir. 1991)

MEMORANDUM^** 

Arthur Sanford appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition.¹  We affirm in part and reverse and remand in part.

In 1986, Sanford pleaded nolo contendere to one count of barratry in violation of California Penal Code section 158 and was sentenced to three years probation and fined $500. In his federal habeas petition, Sanford challenges his conviction on three grounds: (1) " [f]ailure of the prosecutor to introduce evidence" in support of his nolo plea in that the court should not have allowed the prosecutor "to enter petitioner's confession of guilt without prosecutor showing a corpus delicti and the introduction of sufficient evidence of intent of petitioner to commit a crime;" (2) he was denied his right to proceed with the assistance of counsel; and (3) breach of the plea agreement by the state, which allegedly induced his plea in exchange for the promise that he would be sentenced to only one year probation and would not be fined.

* For the first time on appeal, the state argues that Sanford never presented the first claim to any state court. The state also challenges whether Sanford has demonstrated that he has exhausted his third claim that his plea was induced by a plea agreement that the state subsequently breached.

The state did not raise these particular exhaustion issues below, and the district court consequently addressed Sanford's petition on the merits.

When the state answers a habeas petition, it has a duty to advise the district court whether the petitioner has exhausted all available state remedies. Granberry v. Greer, 481 U.S. 129, 134 (1987). When the state fails to raise an arguably meritorious nonexhaustion defense, we determine whether the interests of comity and federalism will be better served by addressing the merits or requiring exhaustion. Id. If the case presents issues of unresolved fact or state law, both comity and judicial efficiency make complete exhaustion appropriate. Id. at 134-35. On the other hand, if the appellant does not raise a colorable claim, these interests are better served by addressing the merits. Id. at 135.

Here, the state does not argue that Sanford has not exhausted the third claim but asserts only that he has not pleaded exhaustion sufficiently. Moreover, the interests of comity are not served by requiring exhaustion of Sanford's first claim because the claim is meritless. Sanford argues that before he entered his nolo plea, the court should have required the prosecutor to present evidence of a "corpus delicti" and his intent to commit a crime. Nevertheless, due process does not require a state court to establish a factual basis for a guilty plea absent special circumstances, such as the defendant's protestation of innocence. Rodriguez v. Ricketts, 777 F.2d 527, 528 (9th Cir. 1985).

Given these circumstances, the state's failure to raise these exhaustion arguments in the district court, and the district court's disposal of Sanford's petition on the merits, we hold that the interests of comity and judicial efficiency are better served by addressing the merits of the two remaining claims. Granberry, 481 U.S. at 134-35.² 

II

In denying Sanford's petition as to his claim that he was denied his right to proceed with the assistance of counsel, the district court adopted the findings and recommendations of the magistrate. The magistrate found that Sanford had been advised of his right to counsel and waived the right. As support, the magistrate cited only the trial court docket sheet, which the state attached to its answer and which notes that Sanford was advised of and waived his right to counsel. The district court's docket sheet indicates that the actual state court record was never lodged in the district court. Neither the state nor Sanford provided any other portions of the state court record.

Under the sixth amendment, a criminal defendant may waive his right to counsel and represent himself, provided that he knowingly, intelligently, and voluntarily elects to do so. Faretta v. California, 422 U.S. 806, 835 (1975). Whether Sanford has waived his right knowingly, intelligently, and voluntarily is a mixed question of law and fact which we review de novo. Harding v. Lewis, 834 F.2d 853, 857 (9th Cir. 1987), cert. denied, 488 U.S. 871 (1988).

Although the district court has no obligation to obtain and review the state court record when disposing of purely factual questions, it must sua sponte obtain and independently review the relevant portions of the state court record if a claim raises a mixed question of law or fact. Hamilton v. Vasquez, 882 F.2d 1469, 1471 (9th Cir. 1989).

Here, the only portion of the state court record reviewed by the district court was the trial court docket sheet. Although the docket sheet notes that Sanford waived his right to counsel, the district court cannot rely on the trial court's notation as a substitute for its own, independent review of the transcripts of the two hearings where Sanford allegedly was advised of and waived his right to counsel. Chaney v. Lewis, 801 F.2d 1191, 1194 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987). The docket sheet indicates that transcripts of these hearings were made, and the district court should review them before deciding Sanford's claim.

III

In denying Sanford's petition as to his claim that the prosecution breached its plea agreement, the district court adopted the magistrate's finding that the claim "is conclusory and totally unsupported by the record."

" [W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such a promise must be fulfilled." United States v. Travis, 735 F.2d 1129, 1132 (9th Cir. 1984) (quoting Santobello v. New York, 404 U.S. 257, 262 (1971)). Whether the prosecution breached a plea agreement is a mixed question of law and fact which we review de novo. See United States v. Fisch, 863 F.2d 690, 690 (9th Cir. 1988); Travis, 735 F.2d at 1132. The district court's factual findings as to the terms of a plea agreement are reviewed for clear error. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986).

Here, by alleging that the prosecution induced his plea by promising him that he would be sentenced only to one year probation and no fine, Sanford states a claim. The district court has a duty to sua sponte obtain and independently review the relevant portions of the state court record, Hamilton, 882 F.2d at 1471, and should review the transcripts of the proceedings where Sanford entered his plea before deciding the claim.³ 

AFFIRMED in part and REVERSED and REMANDED in part.