Unpublished Disposition, 878 F.2d 1438 (9th Cir. 1984)

MEMORANDUM

Nagele, a state prisoner, appeals from the district court's dismissal of his petition for writ of habeas corpus based upon a determination that Nagele had procedurally defaulted on his state court remedies. The district court exercised jurisdiction over the petition pursuant to 28 U.S.C. § 2254. We have jurisdiction of this timely appeal pursuant to 28 U.S.C. §§ 2253 and 1291. We affirm.

We review a district court's dismissal of a petition for writ of habeas corpus independently. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841 (1985).

A procedural default occurs where the state has a procedural rule, the petitioner violates the rule, and as a result, the state court refuses to entertain the merits of the claim. County Court of Ulster County v. Allen, 442 U.S. 140, 147-54 (1979). The State of Arizona has a rule requiring an appellant to set "forth in detail the grounds wherein it is believed the [trial] court erred." Ariz.R.Crim.P. 32.9(a). Nagele violated this rule by filing a pro per motion for rehearing on post-conviction relief in state court without specifying any grounds therefor. As a result, both the court of appeals and the Arizona Supreme Court refused to entertain Nagele's claims on the merits.

Federal courts are precluded from entertaining a habeas corpus petition based upon procedurally defaulted claims, absent a demonstration of both cause and prejudice. Murray v. Carrier, 477 U.S. 478, 484-85 (1986) (Murray) ; Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 907 (9th Cir. 1986) (Hughes) . The ignorance of a pro se petitioner is not sufficient to establish cause. Hughes, 800 F.2d at 909.

Nagele fails to establish any "objective factor [s] external to the defense [which] impeded ... efforts to comply with the State's procedural rule." Murray, 477 U.S. at 488. Because Nagele has not met the cause/prejudice test, our review would ordinarily be terminated. However, the Court stated that there may be "an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent," which will create an exception to the cause/prejudice rule. Id. at 496.

That exception is foreclosed in this case. Nagele pleaded no contest to the charges for which he was convicted. Such a plea "is an admission of guilt for the purposes of the case." Hudson v. United States, 272 U.S. 451, 455 (1926); State v. Stewart, 131 Ariz. 251, 640 P.2d 182, 185 (1982). If it was entered voluntarily, Nagele "waive [d] his right to trial and authorize [d] the court for the purposes of the case to treat him as if he were guilty." North Carolina v. Alford, 400 U.S. 25, 35 (1970). As such, a no contest plea waived all challenges not contesting the sufficiency of the indictment to the conviction. Tseung Chu v. Cornell, 247 F.2d 929, 938 (9th Cir.), cert. denied, 355 U.S. 892 (1957).

Assuming that Nagele's no contest plea was valid, he has waived his ability to assert actual innocence. We therefore examine the validity of this plea. Ineffective assistance of counsel is a mixed question of law and fact, which we review independently. United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988) (Signori) . Nagele "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the [proper] standards...." Tollett v. Henderson, 411 U.S. 258, 267 (1973). In order to prevail on this petition, Nagele "must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense." Signori, 844 F.2d at 638. One of the duties of a competent counsel is "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland v. Washington, 466 U.S. 668, 691 (1984).

Nagele asserted that he was deprived of effective assistance of counsel because his counsel failed to conduct adequate discovery prior to the plea. However, Nagele's counsel, Mr. Wolfram, interviewed David Wiedemeyer on July 13, 1984. In the July 19, 1984, proceeding where Nagele's plea was entered, the prosecution stated that Mr. Wiedemeyer was a witness to Nagele's admission of murder. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. Therefore, we should not second-guess the tactical decision of Nagele's counsel not to investigate every lead given him by Nagele, and should afford his determination of the adequacy of discovery following an interview with at least one key witness "a heavy measure of deference." Consequently, Nagele fails to demonstrate that the counsel's discovery constitutes a violation of his sixth amendment rights.

Furthermore, his allegations regarding his counsel's actions on direct appeal are frivolous. Nagele's counsel submitted a brief in compliance with Anders v. California, 386 U.S. 738 (1967). Nagele was informed of his right to submit a separate brief in propria persona, but failed to do so. Therefore, he cannot assert that counsel acted in a less than competent fashion.

Nagele procedurally defaulted on state court remedies. He has failed to demonstrate cause and prejudice or that an exception to that requirement is applicable in this case. Therefore, we affirm the district court's dismissal due to procedural default.

AFFIRMED.

Note: 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.