Gerald Arthur Friend, Petitioner-appellant, v. James Blodgett, Superintendent, Respondent-appellee, 959 F.2d 240 (9th Cir. 1992)

MEMORANDUM^** 

Gerald Arthur Friend, a Washington state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we affirm.

On October 26, 1960, Friend pleaded guilty to first degree rape. In 1965, Friend filed his first federal habeas petition and alleged that his plea was unconstitutional because the state breached its promise that in exchange for pleading guilty, Friend would be enrolled in a sexual psychopath program. The district court denied the 1965 petition, and both the district court and this court denied Friend's request for a certificate of probable cause. In 1989, Friend filed his second federal habeas petition and alleged that his plea was not voluntary and intelligent because (1) he was not mentally competent to enter a guilty plea due to his low intelligence and schizoid personality; and (2) the state breached the plea agreement.

The district court did not err by dismissing Friend's habeas petition as delayed and successive without holding a hearing or appointing counsel to represent him. Friend raised the claim that the state breached the plea agreement in his 1965 petition, and this claim was determined adversely to him on the merits. See Sanders v. United States, 373 U.S. 1, 15-16 (1963); Rule 9(b), Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254.¹  Moreover, the ends of justice would not be served by reaching the merits of this claim again because Friend has made no colorable showing of factual innocence. See Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (plurality opinion). Finally, Friend's claim that he was not mentally competent to plead guilty was properly dismissed under Rule 9(a) of the Rules Governing Section 2254 Cases because his twenty-nine year delay in raising this claim has prejudiced the state's ability to respond. See Harris v. Vasquez, 949 F.2d 1497, 1510-11 (9th Cir. 1991), cert. denied, 112 S. Ct. 1275 (1992).

AFFIRMED.