Unpublished Disposition, 874 F.2d 816 (9th Cir. 1989)
Annotate this CaseKash D. REGISTER, Petitioner-Appellant,v.Daniel B. VASQUEZ, Warden, et al., Respondent-Appellee.
No. 88-5692.
United States Court of Appeals, Ninth Circuit.
Submitted* April 27, 1989.Decided May 1, 1989.
Before HUG, SCHROEDER and LEAVY, Circuit Judges.
MEMORANDUM**
Kash D. Register, a California state prisoner, appeals the district court's dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254. Register was convicted of first degree murder. He contends that he was denied his fifth amendment right to be prosecuted by grand jury indictment; that he was denied effective assistance of counsel because his attorney failed to object to the lack of an indictment; that he was unconstitutionally prosecuted by a private prosecutor; that California could not properly charge him with first degree murder without including in the information a reference to Cal.Penal Code Sec. 189; and that the trial court lacked jurisdiction. We affirm.
We review the district court's dismissal of Register's petition for writ of habeas corpus de novo. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985).
Register contends that his fifth amendment rights were violated by his prosecution by information, rather than by grand jury indictment. However, the fifth amendment right to a grand jury indictment does not apply to state proceedings. Hurtado v. California, 110 U.S. 516, 538 (1884); Morford v. Hocker, 394 F.2d 169, 170 (9th Cir. 1968), cert. denied, 392 U.S. 944 (1968). The State of California provides that a person may be charged either by means of indictment or information. Cal.Penal Code Sec. 683. Therefore Register's constitutional rights were not violated when he was prosecuted by information rather than grand jury indictment.
Register next contends that he was denied effective assistance of counsel at trial when his attorney filed to object to the use of information and did not assert his right to be indicted by a grand jury. Since Register had no right to be charged by indictment, this claim fails. See Strickland v. Washington, 466 U.S. 668 (1984).1
Register alleges that his equal protection rights were violated because he was prosecuted by a private prosecutor rather than a public prosecutor. In order to obtain habeas relief, a state prisoner must demonstrate that his detention violates the federal Constitution or laws. 28 U.S.C. § 2241(c) (3); Pulley v. Harris, 465 U.S. 37, 41 (1984); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). There is no support in federal law or from the facts in the record to support a claim that such a procedure unlawfully discriminated against Register. Thus, the district court properly dismissed this claim.
Register next contends that California could not properly charge him with first degree murder without including in the information a reference to Cal.Penal Code Sec. 189, which divides the crime of murder into degrees. The sixth amendment requires, in part, that an information state the elements of an offense with sufficient clarity to apprise a defendant of what he must be prepared to defend against. Miller v. Stagner, 757 F.2d 988, 994 (9th Cir. 1985). Without an allegation that the wording of an information was insufficient to put the petitioner on notice of the crime charged, there is no constitutional claim raised. Application of Atchley, 169 F. Supp. 313, 316 (N.D. Cal. 1958). Further, under California law there is no requirement that the information state the degree of murder. People v. Mendez, 27 Cal. 3d 20, 23 (1945); see also Davis v. Utah Territory, 151 U.S. 262, 267 (1964). Here, Register was charged with violating Cal.Penal Code Sec. 187, which prohibits 'the unlawful killing of a human being ... with malice aforethought." He has not claimed that the information was so defective as to deprive him of notice of the charges against him. Thus, his contention fails.
Lastly, Register contends that the trial court lacked jurisdiction to hear his case because he was denied his constitutional right to be indicted by a grand jury and because he was prosecuted by a private prosecutor. In light of the fact that Register had no constitutional right to be indicted by a grand jury, see Morford, 394 F.2d at 17, and because he failed to allege any facts that could support the claim that the prosecutor did not have the right to prosecute him, the district court correctly denied this claim.
Because all of Register's claims are without merit, we affirm the district court's dismissal of Register's petition for writ of habeas corpus.
AFFIRMED.
Although Register requests oral argument, the panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
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. 36-3
Register contends on appeal that he was also denied effective assistance of counsel by his attorney's failure to object (1) to the information charging him with Cal.Penal Code Sec. 187, and (2) to the lack of evidence of the underlying felony of robbery which was used to invoke the felony murder rule. This court generally does not address issues first raised on appeal. Grauvogel v. Commissioner of Internal Revenue, 768 F.2d 1087, 1090 (9th Cir. 1985)
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