Unpublished Disposition, 845 F.2d 329 (9th Cir. 1984)

MEMORANDUM^** 

This is an appeal from a denial of a petition for writ of habeas corpus. On January 12, 1978, petitioner entered a plea of guilty to the crime of attempted murder. On November 6, 1984, he filed the present petition for writ of habeas corpus, based upon the claim that he was not advised of the essential elements of attempted murder prior to entering his plea of guilty for that crime. After holding an evidentiary hearing on the matter, the district court concluded that petitioner was advised of, and understood, the essential elements of the crime prior to entering his plea. Petitioner timely appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1982), and we affirm.

We review de novo the district court's determination regarding the voluntariness of the guilty plea. Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir. 1986). However, we uphold the district court's finding of subsidiary facts unless we determine that they are clearly erroneous. Id.

This case is governed by Boykin v. Alabama, 395 U.S. 238, 243-4 (1969), which states that, in order for a guilty plea to be effective, the defendant must have been advised of his right to a jury trial, his Fifth Amendment rights, his right to confront his accusers, and the consequences of waiving those rights, including the potential sentence imposed upon acceptance of the plea. The district court concluded that all of those elements were met, and we agree.

Petitioner contends that he was never advised prior to entering his plea of the elements of attempted murder. The district court concluded from a review of documentary evidence that the record did not "specific [ally] indicat [e] that petitioner was advised during any court hearing of the essential elements of the crime of attempted murder." Nevertheless, in order to find that the plea was knowingly and voluntarily made, it is unnecessary to show that the record reflects an explanation of the charge by the trial judge or an express representation by the defense attorney that the nature of the offense was explained to the defendant. See Henderson v. Morgan, 426 U.S. 637, 647 (1976). Rather, petitioner "must be presumed to have been informed" by his lawyer of the charges to which he pled guilty. Marshall v. Lonberger, 459 U.S. 422, 437 (1983).

Here, the attorney who represented Wayne at the time he was convicted, Mr. McNabney, testified at the evidentiary hearing held by the district court that, although he did not specifically recall advising petitioner of the elements of the crime, it was his regular practice to discuss thoroughly the nature of the crime and potential defenses. Moreover, he testified that petitioner's case was unusual in light of the defendant's notoriety, his criminal history, and his previous escape. The district court concluded that it was the type of case "to which Mr. McNabney would have paid attention."

We find that Wayne has failed to overcome the presumption that Mr. McNabney explained the elements of attempted murder to him prior to entering the guilty plea. The simple fact that Mr. McNabney could not specifically recall such explanation fails to successfully rebut the presumption, in light of the fact that McNabney was called to testify ten years after the fact. Moreover, we have previously stated that an attorney's "regular practice might support a finding" that the attorney advised the defendant of the elements of a crime. Hayes, 784 F.2d at 1439.

To the extent that attorney's habits are not conclusive (see id.), there was ample evidence apart from Mr. McNabney's testimony to support the district court's conclusion.

Petitioner had considerable prior experience in the criminal justice system, having been arrested 32 times and having suffered 11 felony and 12 misdemeanor convictions. The district court found that the documentary evidence reflected that petitioner was articulate and intelligent, (see Marshall, 459 U.S. at 437), and that he repeatedly told the court during proceedings in this case that he understood what he was doing. The district court also noted that the transcript of proceedings contained statements by Mr. McNabney that petitioner knew what the charges were. In fact, Wayne was provided with a copy of the indictment setting forth the elements of attempted murder, and the indictment was read aloud to him. Moreover, prior to entering the plea, petitioner was granted a one-day continuance for the express purpose of allowing him additional time to discuss his case with Mr. McNabney. This evidence¹  overwhelmingly supports the conclusion that Wayne was duly advised of the elements of attempted murder.

AFFIRMED.