Unpublished Disposition, 878 F.2d 388 (9th Cir. 1989)

MEMORANDUM^** 

Appellant, Martin Wright, an Arizona state prisoner, appeals pro se the district court's grant of appellees' motion for summary judgment and dismissal of his 28 U.S.C. § 2254 habeas corpus petition. We affirm.

* FACTS

Pursuant to a plea agreement, Wright pleaded guilty to one count of child molestation; a second count of attempted child molestation was dismissed. Wright received the minimum sentence of 5.25 years, subject to the statutory requirement that he serve at least 5 years before being eligible for parole. After exhausting all state claims, Wright filed a petition for a writ of habeas corpus in district court. His habeas petition presented five claims: ineffective assistance of trial counsel; involuntary plea; unconstitutional representation; denial of a fair evidentiary hearing during post-conviction proceedings; and ineffective assistance of counsel on appeal. The district court granted appellees' motion for summary judgment and denied Wright's habeas petition.

II

ANALYSIS

Wright contends the district court erred in concluding that he did not have constitutionally ineffective assistance of counsel during the pretrial phase of his case. Under Strickland v. Washington, 466 U.S. 668 (1984), Wright must show that his counsel's performance was deficient and that the deficient performance prejudiced his case. Id. at 687. Furthermore, " [j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689.

Wright maintains his counsel was overworked and did not spend enough time on his case. He also contends his counsel failed to investigate potential defenses and file various pretrial motions. A review of the record confirms the district court's finding that none of the witnesses named by the petitioner could provide a defense. One alibi witness was not with petitioner at the time of the act while the other witnesses could only impeach the state's witnesses on collateral matters. See Montano v. Scottsdale Baptist Hospital, Inc., 119 Ariz. 448, 453, 581 P.2d 682, 687 (1978) (witness may not be impeached on collateral matters).

Wright's counsel spent fifteen to twenty hours on his case. Both the Arizona state court in Wright's evidentiary hearing, and the district court, determined this to be reasonable. Wright fails to show how his case was prejudiced by the amount of time spent on it.

Wright also argues he was denied effective counsel because a private investigator was not appointed in his behalf. However, he fails to show the need for an investigator or that he was prejudiced by not having one.

Wright maintains his counsel failed to request a voluntariness hearing to suppress statements made to Officer Brice. However, the prosecutor only intended to use these statements for purposes of impeaching Wright's credibility if he took the stand. Furthermore, the prosecutor already had two witnesses who would testify that Wright had molested or attempted to molest them. In addition, Wright's counsel testified in Wright's state court evidentiary hearing that Wright admitted to having engaged in sexual intercourse with Toini Streeter. Thus, counsel felt he could not call Wright to testify and allow him to commit perjury. Instead, he chose to advise Wright regarding a plea agreement. Counsel's attempt to dissuade Wright from committing perjury does not violate the sixth amendment right to assistance of counsel. Nix v. Whiteside, 475 U.S. 157 (1986). In addition, Wright himself indicated that he did not want to testify. If Wright did not testify, the statements made to Officer Brice would not be admitted into evidence; thus, a motion to suppress would be unnecessary.

We conclude Wright has failed to make a showing of constitutionally ineffective assistance of counsel.

Wright contends his agreement to plead guilty was involuntary because his counsel advised him that it was likely he would be convicted and that he faced up to thirty-one years if convicted on both counts. The test for voluntariness of a plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970). Wright's counsel testified at Wright's state court evidentiary hearing that he explained to Wright the decision to plead was Wright's alone. Wright was given a second chance to think about his decision when the judge allowed Wright and his counsel to confer outside the courtroom after a misunderstanding by counsel about the minimum sentence required under the statute. After reconsideration, Wright still chose to plead guilty. Wright also signed the plea agreement which correctly stated the minimum sentence he would be required to serve.

We conclude Wright's plea was voluntary.

Wright next contends the state court failed to apply a rebuttable presumption of unconstitutional representation as required by State v. Joe U. Smith, 140 Ariz. 355, 681 P.2d 1374 (1984). This presumption, however, applies only to cases tried after the mandate in Smith. It does not apply to Wright's case. And in any event, the district court was bound by the holding in Strickland, supra, which has since been adopted by Arizona. State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985).

Wright alleges he was denied a fair evidentiary hearing and effective assistance of counsel in his discretionary post-conviction evidentiary hearing in state court. The record indicates that Wright was given the opportunity to choose the question and answer method in this proceeding. At the conclusion, Wright stated that all of the issues he wanted to address had been presented. We agree with the district court that Wright had no right to assistance of counsel in this post-conviction discretionary proceeding. See Ross v. Moffitt, 417 U.S. 600, 614-15 (1974). Thus, he could not be deprived of a constitutional right to effective assistance of counsel. Wainwright v. Torna, 455 U.S. 586, 587-88 (1982).

E. Ineffective Assistance of Counsel on Appeal

Wright's final argument is that he was denied effective assistance of counsel on direct appeal. Although Wright's appeal was dismissed due to procedural default before appellate counsel was appointed, counsel was able to argue the same claims before the state court of appeals in Wright's Petition for Review in Arizona State Court Rule 32 Proceedings. Thus, Wright was not denied effective assistance of counsel on appeal.

AFFIRMED.