Unpublished Disposition, 869 F.2d 1499 (9th Cir. 1988)

MEMORANDUM^*

Richard Sulo Wirta, a state prisoner, appeals from the denial of his petition for a writ of habeas corpus. This is the fourth petition for writ of habeas corpus filed by Wirta in the district court.

* Wirta set forth the following claims in his latest habeas corpus petition:

One. He entered a guilty plea to second-degree murder involuntarily in violation of his fifth amendment right to due process because he was suffering from post-traumatic stress disorder (PTSD) at the time it was accepted by the Arizona Superior Court.

Two. The presentence report fails to contain a factual basis for the plea.

Three. The state court refused his request for the appointment of counsel to represent him during state post-conviction proceedings.

We affirm the dismissal of the petition for a writ of habeas corpus because we agree with the district court that Wirta failed to allege facts showing a deprivation of his federal constitutional rights. The government contends that Wirta's second and third claims have not been exhausted in the Arizona courts. We disagree. Wirta's second claim was presented to the Arizona Superior Court. In his petition for post-conviction relief, filed June 1, 1987, Wirta alleged that the "presentence report did not show factual basis for plea, and defendant's plea of guilty was involuntary, unknowingly, and unintentionally made." This claim was reviewed and denied by the Arizona Court of Appeals on November 24, 1987. The Arizona Supreme Court reviewed and denied the same claim on March 31, 1988. Wirta's third claim that he was not appointed counsel at post-conviction relief was presented to the Arizona Court of Appeals in his motion for reconsideration on December 3, 1987. The motion was denied on December 29, 1987. The Supreme Court of Arizona denied review of this claim on March 31, 1988.

We conclude that the issues have been exhausted properly and we proceed to the merits.

II

We review the denial of a petition for writ of habeas corpus independently, without deference to the district court's determination of the sufficiency of the claims. Rife v. Godbehere, 814 F.2d 563, 564 (9th Cir. 1987). We have independently reviewed the medical reports submitted by Wirta in support of his claim that his guilty plea was involuntary. None of the medical experts expressed an opinion on the question whether Wirta lacked the capacity to enter a voluntary plea of guilty because he was suffering from PTSD. Instead, their psychiatric evaluation was directed at a discrete issue--was Wirta competent to stand trial. The district court did not err in dismissing the voluntariness claim.

III

Wirta contends that the plea of guilty must be invalidated because the presentence report contains no factual basis for the guilty plea. There is no constitutional requirement that the factual basis for a guilty plea be set forth in a presentence report. Cf. Boykin v. Alabama, 395 U.S. 238, 242 (1969) (a factual basis to support a guilty plea is required.) We have read the presentence report. The report reflects that the defendant killed the victim in a jealous rage by firing four bullets into his head. The defendant stated he only intended to frighten the victim by "clicking an empty cylinder of the gun." The cylinder was not empty. He accidentally shot the victim in the head. He fired three more rounds at the victim because he did not wish the victim to suffer. Contrary to Wirta's argument, the presentence report contains facts that demonstrate that there was a factual basis for the plea.

IV

Wirta's final contention is that he was denied counsel to assist him in presenting a post-conviction petition to the Arizona courts. There is no federal constitutional right to appoint counsel for a collateral attack on a criminal conviction. Pennsylvania v. Finley, 107 S. Ct. 1990, 1993 (1987).

AFFIRMED.