Unpublished Disposition, 872 F.2d 427 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 427 (9th Cir. 1989)

No. 88-3927.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and ALARCON, Circuit Judges, and WILLIAM H. ORRICK,*  Senior District Judge.

MEMORANDUM** 

Appellant, Mickey Gene Hansen, in custody in the State of Montana following his conviction of sexual intercourse without consent, appeals from an order of the United States District Court for the District of Montana denying his petition for a writ of habeas corpus. In his petition appellant asserts two grounds for relief under the Fifth Amendment: (1) that the use at trial of incriminating statements made by appellant at an earlier plea hearing should have been limited by the trial court to impeachment purposes; and (2) these incriminating statements were made involuntarily.

The incriminating statements at issue occurred during a plea colloquy at which appellant pled guilty. This plea was later withdrawn when appellant repudiated his guilt during the preparation of a presentence report. At his subsequent trial, appellant's earlier admission of guilt was used during cross-examination, apparently as a prior inconsistent statement to impeach appellant. No objection was made at that time, or upon direct appeal to the Montana Supreme Court, that the trial court failed to instruct the jury that appellant's statements were admissible only for purposes of impeachment.

The failure to object contemporaneously or on direct appeal to the state's highest court bars review in this court of appellant's first ground for relief. It is axiomatic that failure to raise an alleged violation of federal law in the state proceeding, absent a showing of cause for and prejudice from the waiver, bars collateral federal review. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Appellant has not shown any cause for his failure to raise an objection to the alleged substantive use of his statements. Indeed, in his brief before the Montana Supreme Court, appellant characterized the use of his statements as "for purposes of impeachment." Supplemental Excerpt of Record at 3-4. Because appellant has failed to show cause for the waiver or prejudice therefrom, the rule of Wainwright plainly forbids review by this court of the first ground for relief.

Appellant's second ground for relief is bottomed on the contention that the statements made at the plea colloquy were involuntary or coerced. In United States v. Pinion, 800 F.2d 976 (9th Cir. 1986), this court stated the test for determining voluntariness of a confession. "The text is whether under the totality of the circumstances, the government obtained the confession by coercion or improper inducement." Id. at 980, citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963).

A review of the plea colloquy reveals clearly that the trial court took extensive and easily comprehensible measures to ensure that appellant made his admission of guilt knowingly and voluntarily. The court emphasized to appellant that it was not the purpose of a plea bargain to get a confession. The court further stated to appellant that he could obtain new counsel if he felt it necessary before pleading. Appellant was also informed that any plea he entered must be "informed and willing." Excerpt of Record at 23-26. After all these admonitions, appellant assured the court that he was entering his plea "freely and voluntarily." Id. at 26.

The totality of the circumstances here indicate that appellant's plea was neither coerced nor the result of improper inducement. Were the promise not to press a habitual offender charge considered improper inducement, all statements made during plea bargains would be subject to attack as involuntary. Accordingly, appellant's second ground for relief fails.

The order of the district court dismissing the petition for a writ of habeas corpus is AFFIRMED.

 *

Honorable William H. Orrick, Senior United States District Judge for the Northern District of California, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 21