Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1989)

MEMORANDUM^** 

This is a case in which the appellant Bass seeks to have his 28 U.S.C. § 2254 (1982) petition for a writ of habeas corpus granted. In essence, he asserts that his guilty plea was involuntary because his attorney prior to the taking of his plea did not show him the presentence report. The district court denied the petition and we affirm.

FACTS

A condensed version of the facts is as follows. Bass pled guilty to two charges of theft of money or property having a value in excess of $100, criminal trespass, and second degree burglary. Prior to taking the guilty plea a presentence report was prepared and a copy made available to Bass' attorney who, according to his testimony, on a hearing to vacate Bass' sentence in a state court proceeding, testified that, although he had no recollection of showing the report to Bass, he did explain the report and its significance to Bass prior to his plea. Moreover, he testified that Bass, in his view, understood the significance of the report.

The probation officer also testified that he spent in excess of one and a half hours explaining the report to Bass and outlining the alternatives to pleading guilty. In addition, the probation officer went over the life of Bass very carefully to explain the relevance of certain features of his life to his likely sentence.

Nonetheless, Bass asserted that the report was inaccurate and that many of its statements were fabricated. He argues, in effect, that had his attorney showed him the report he would have perceived the errors and either had them corrected before pleading or refused to plead guilty. It follows, he asserts, his guilty plea was involuntary.

According to the attorney and the probation officer, Bass's guilty plea was entered after they explained the contents of the presentence report to Bass and after the judge gave Bass the opportunity to withdraw from the plea bargain and plead not guilty. Bass adhered to the bargain and pleaded guilty. Apparently Bass received a more severe sentence than he expected.

The state courts before which Bass sought to have his sentence vacated refused to grant relief. In their view the issue was one of credibility. Bass was not believed. Accepting the testimony of the attorney and the probation officer as true, the state courts found no prejudice to Bass resulted from the procedure that was followed and that his plea was voluntary.

In his habeas corpus petition, Bass asserts that he was denied effective assistance of counsel during his sentencing. Had he been afforded effective assistance he would not have pleaded guilty.

STANDARD OF REVIEW

We must extend deference to the state court's findings of fact. However, effectiveness of counsel is a mixed question of fact and law which we review de novo. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986).

DISCUSSION

We have held that defense counsel's failure to show his client the presentence report may fall below the standard of reasonably competent representation. See id. at 865; United States v. Donn, 661 F.2d 820, 824 (9th Cir. 1981). The reason behind our view is that such a failure may deprive the defendant of the information needed to make an informed and intelligent decision with respect to whether his plea will be guilty or not guilty. Constrained as we are to give deference to the facts found by the state courts, we must conclude that in this case Bass was informed of the contents of the presentence report. Under these circumstances, we cannot find that counsel's failure to show the report to Bass prejudiced him or that counsel's failure constituted ineffective assistance of counsel.

AFFIRMED.