Unpublished Disposition, 875 F.2d 318 (9th Cir. 1982)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 318 (9th Cir. 1982)

Joseph Anthony ALARIO, Plaintiff-Appellant,v.Harol WHITLEY, Defendant-Appellee.

No. 88-15512.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 5, 1989.Decided May 17, 1989.

Before POOLE, REINHARDT, and O'SCANNLAIN, Circuit Judges.


Joseph Alario appeals the denial of his writ of habeas corpus. On appeal, he argues that he was denied the effective assistance of counsel, that his guilty plea was not knowing and intelligent, and that the district court erred in not holding an evidentiary hearings on his claims. We affirm.


On November 15, 1982, appellant met with Ralph Morela. Their conversation, conducted entirely in English, was monitored and taped by the Federal Bureau of Investigations. During the conversation, Alario made statements that incriminated him in the murder and robbery of Jerome Farula. After the completion of the conversation, FBI agents arrested Alario. He was charged with first degree murder, use of a deadly weapon, and robbery with the use of a deadly weapon.

Appellant's counsel, Cremens, entered into plea negotiations with the prosecution. Both sides agreed that Alario would plead guilty to first degree murder and that the robbery and weapons enhancement charges would be dropped. Pursuant to the plea negotiations, the prosecution recommended that appellant receive a life sentence rather than the death penalty.

At an extended plea hearing, appellant's counsel informed the trial court of the plea arrangement. The trial judge engaged Alario in an lengthy colloquy, covering thirteen pages of the reporter's transcript. The plea discussion covered the elements of the crime charged, the state's burden of proof, the specific constitutional rights waived by the guilty plea, and the facts surrounding the murder charge. To all the questions concerning the waiver of rights, appellant answered that he understood and agreed to forego his constitutional rights. When questioned about the killing of Farula, Alario would not admit to physically committing the murder; however, he confessed to participating in the robbery of the victim and to being in the apartment when the murder took place. These admissions were sufficient to constitute felony-murder, a murder of the first degree under Nevada state law. Although the indictment did not refer to felony-murder, the trial court specifically questioned appellant about whether he was willing to waive any variance. Alario agreed to do so. The court then sentenced appellant to life in prison without the possibility of parole.

One year later, Alario sought an evidentiary hearing on the issues raised in this petition. This time, appellant appeared with an interpreter. Through his interpreter, he argued that he had not understood the nature of the plea proceedings. When asked whether he remembered waiving certain rights, Alario replied: "I don't understand what you are saying now ... waive, I think that is someone who's giving a signal from a boat." Attorney Cremens testified for the state. He recalled that he had discussed the plea arrangement many times with appellant, that Alario's English was fluent, and that appellant understood the bargain. The trial judge agreed with Cremens.

After exhausting his state remedies, appellant sought a writ of habeas corpus in federal court. While early motions filed by Alario indicated a willingness to submit the case on the pleadings, appellant eventually requested an evidentiary hearing. The district court declined to grant a hearing and denied the petition.


To assert a valid ineffective assistance of counsel claim under the Sixth Amendment, appellant must show that counsel's performance fell below the range of reasonable professional assistance and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Appellant here cannot carry his burden to show that trial counsel's performance fell below acceptable standards. See United States v. Cronic, 466 U.S. 648, 656 (1984).

The proof of Alario's guilt was substantial. A brief review of the FBI tapes show that appellant made highly incriminating statements. "Well, you and me and him did it. You know, he's the one that put me to fucking club this guy cause the job was beautiful, no problems." Later in the conversation, Alario not only added more evidence to the government's case but also linked himself with other murders. "We jump on him, you know, I mean....Fucking screaming and everything, you know....You know, we, that was too fast because that thing, we, we should bury the fuckin' guy. We did, we never find him....I bury another guy near, near Vegas."

Not only was the evidence against Alario substantial, we find his attempts to explain his conduct most unconvincing. Given the weight of evidence against appellant, there was a reasonable possibility that if the case was taken to trial appellant would have received a sentence of death. Indeed, Donald Damico, also implicated in the Farula killing, had already been convicted of first degree murder, and his jury had recommended death. Under these circumstances, we cannot fault counsel's decision to enter into a plea arrangement and negotiate a penalty of less than death. See Strickland, 466 U.S. at 690. We hold that counsel's conduct does not fall below the standard of reasonably effective assistance required under the Sixth Amendment.


To be valid, a guilty plea must be voluntary, knowing and intelligent. Boykin v. Alabama, 395 U.S. 238, 242 (1969). An accepted method for a state court to use in questioning a defendant on the record is laid out in Federal Rule of Criminal Procedure 11. In this case, the trial court's extended colloquy with the defendant met all the requirements laid out in the rule. Although a state court is not required to follow the precise Rule 11 formula, by doing so the trial court insured that the questioning met due process standards.

However, even if the defendant was asked all the proper questions, the plea would still not be voluntary if the defendant did not understand the nature of the proceedings against him. Id. In this case, Alario now claims, through his newly hired interpreter, that his English was insufficient for him to understand the plea colloquy.

There was substantial evidence that appellant's English was more than adequate for him to understand the proceedings. Attorney Cremens testified that, throughout his representation, he communicated with his client in fluent English. Moreover, the FBI's tapes reveal appellant's ability to use both standard and nonstandard conversational terms. We generally defer to the state's courts findings of fact, Kimmelman v. Morrison, 477 U.S. 365, 389 (1986), and in this case we have no trouble in agreeing with the state court that Alario's testimony was unpersuasive.

Finally, appellant argues that the plea should be withdrawn because there was a variance between the facts admitted and the charges in the indictment. Appellant cites North Carolina v. Alford, 400 U.S. 25, 37-39 (1970) for the proposition that a court may not accept a guilty plea coupled with a claim of innocence if there is an inadequate evidentiary basis. Here, however, Alario confessed to facts amounting to felony-murder, facts sufficient to warrant a first degree murder charge in Nevada. Therefore, there was sufficient evidence to support a first degree murder plea in this case. Appellant's real claim seems to be that there was a variance between what was alleged in the indictment and what was confessed to during the plea colloquy. Not only is a variance between indictment and plea principally an issue of state law but appellant validly waived any such claim during the plea hearing. Moreover, even leaving aside the felony murder theory, there was sufficient evidence for the trial judge to accept an Alford plea on the charge contained in the original indictment. We therefore agree with both the state and federal courts in holding that the plea here was voluntary, knowing and intelligent.


Finally, appellant argues that the federal district court erred in not holding an evidentiary hearing on the habeas petition. We hold that the district court did not err.

A federal district court must hold an evidentiary hearing in a habeas corpus case if the prisoner did not receive a full and fair hearing in state court. Harris v. Pulley, 692 F.2d 1189, 1197 (9th Cir. 1982), reversed on other grounds, 465 U.S. 37 (1984). Here, the record demonstrates that the hearing the appellant received in state court met the Harris standard. The transcript, motions, and files of the case were sufficient for the district court to adjudicate the petition for relief. Moreover, judging from the district court's order, it appears that the court was sufficiently familiar with the state record to reach its factual conclusions.

The denial of the writ of habeas corpus is



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3