Unpublished Disposition, 851 F.2d 361 (9th Cir. 1988)

MEMORANDUM^** 

John Spinelli, a federal prisoner¹  convicted in California state court, appeals pro se the district court's denial of his 28 U.S.C. § 2254 petition. Spinelli contends that he was coerced into pleading guilty in order to receive medical attention. He also contends that he had ineffective assistance of counsel at the time he entered into the plea agreement. We affirm.

* Spinelli contends that his guilty plea was involuntary because it was the result of coercion. This contention lacks merit.

A guilty plea is invalid if induced by promises or threats which deprive it of the character of a voluntary act. Machibroda v. United States, 368 U.S. 487, 493 (1962); Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986). To determine the voluntariness of a guilty plea, we examine the totality of the circumstances. Brady v. United States, 397 U.S. 742, 749 (1970); Iaea, 800 F.2d at 866. Our concern is not solely with the subjective state of mind of the defendant, but also with the constitutional acceptability of the external forces inducing the guilty plea. Id.

The gravaman of Spinelli's complaint is that he was forced to plead guilty in order to receive medical attention and to gain protection from prison gangs by being returned to Texas. Spinelli alleges that the conditions listed on the second page of the Change of Plea form clearly show that he was coerced into pleading guility. The Change of Plea form specifies: "I am freely and voluntarily entering the plea(s) of guilty ... [b]ecause the District Attorney has agreed to:²  1) Provide Medical treatment/repair for my Ear [;] 2) Dismiss all charges from Vacaville and/or Monterey [;] 3) immediately upon sentencing return me to Texas [;] 4) Preserve the record for an appeal and a new writ of Habeaus [sic] Corpus presently being filed by my attorney." (C.R. 9, Exhibit A.) There is nothing on the face of the form to substantiate Spinelli's claim that he was told that his medical treatment and his return to Texas would be withheld if he did not plead guilty. Spinelli's allegations are also contradicted by the sworn affidavits of the prosecution and defense counsel involved in his case. Both attorneys deny that any promises or threats were made to Spinelli. (C.R. 9, Exhibits K, L.) Accordingly, because Spinelli has failed to support his contention that his plea was involuntary, the district court did not err in determining that Spinelli was not entitled to habeas relief on this ground.

II

Next, Spinelli contends that he was denied effective assistance of counsel. Specifically, he alleges that his counsel should have informed him that his return to Texas was automatic under the Interstate Detainer Agreement, and that he did not have to plead guilty in order to be returned to Texas. Even if we assume that his counsel's performance was deficient, however, Spinelli must show a reasonable possibility that, had he received adequate representation, he would not have pleaded guilty, but would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); Iaea, 800 F.2d at 865. Spinelli does not allege that this is the case, as demonstrated by the following statements from his traverse:

The sentence I received from San Bernardino is not the issue in my petition. My guilt is not the question or the challenge. I have not claimed I was not guilty of the charges to anyone and I have pled guilty to totals of life sentences.... [I]f my petition is granted and found true, I have no intention of seeking a trial from San Bernardino. It would be absurd for me to say I did not escape from a California Prison when I was was caught in Texas. I would plead guilty to the charges, but there would be a manifest difference. I would not have to do so to get medical treatment.

C.R. 12 at 11. Therefore, because Spinelli cannot show his counsel's allegedly deficient representation prejudiced him, the district court did not err in determining that Spinelli was not entitled to habeas relief on this claim.

III

Finally, Spinelli contends that the district court erred in refusing to appoint counsel to assist him in presenting his petition. We disagree.

The Sixth Amendment right to counsel does not apply in habeas corpus actions. Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.), cert. denied, 107 S. Ct. 228 (1986). Accordingly, the appointment of counsel to represent an indigent civil litigant is within the discretion of the district court and should be granted only if "exceptional circumstances" are shown. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In evaluating such a claim, we consider the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved. Id.

In this case, Spinelli made repeated requests for appointed counsel to the district court which went unaddressed. C.R. 1 at 19 (petition); C.R. 12 at 11 (traverse); C.R. 16 at 1, 4, 6 (objections to magistrate's report). Only after Spinelli renewed his request in filing this appeal did the magistrate recommend that the request be denied. C.R. 25. While we are troubled by the district court's failure to formally rule on Spinelli's requests for counsel, it is clear that the requisite exceptional circumstances do not appear here. Spinelli demonstrated the ability to articulate his claims in a satisfactory manner, and the law is clear that he is not entitled to relief on those claims. In such circumstances, denial of counsel was warranted. Wilborn, 789 F.2d at 1331. Any error on the part of the district court in failing to address the motion did not prejudice Spinelli or deny him due process. See Knaubert, 791 F.2d at 729-30.

The judgment of the district court is AFFIRMED.