Unpublished Disposition, 883 F.2d 1023 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1023 (9th Cir. 1988)

Alan David CRAIG, Petitioner-Appellant,v.D.W. McCARTHY, Director of California Department ofCorrections, et al.; Wayne Estelle, Warden,Respondents-Appellees.

No. 88-15343.

United States Court of Appeals, Ninth Circuit.

Submitted June 28, 1989.* Decided Aug. 23, 1989.

Before JAMES R. BROWNING, PREGERSON and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Alan David Craig ("Craig") appeals the district court's denial of both his petition for writ of habeas corpus and his subsequent motion for reconsideration. We have jurisdiction pursuant to 28 U.S.C. § 2253, and affirm.

FACTS AND PROCEEDINGS

The events leading up to Craig's state conviction occurred over nearly a decade and culminated in a violent incident in September 1981. In 1973 Craig was involved in a civil action seeking the destruction of a dog. Andrew Gillin ("Gillin"), a Berkeley attorney, successfully defended the action on behalf of the dog's owner. During the proceedings considerable animosity developed between Gillin and Craig.

In 1976, Craig brought suit against the dog's owner seeking damages for a series of dog bites. Gillin again represented the owner and prevailed in the suit. For five years following that suit the Gillin family was the target of numerous anonymous acts of harassment including vandalism, crank phone calls, and one incident of arson. Craig has acknowledged that during this period he had "played some pranks" on Gillin.

At about 2:00 a.m. on September 16, 1981, Gillin's home alarm system alerted him to the presence of an intruder on the driveway. Gillin turned on the carport light and went outside to investigate. Spotting Craig arising from a hunched-over position, Gillin screamed, "I finally got you!" Craig turned aside and started walking down the driveway. Gillin ran after him, jumped on his back, and held him in a "bear hug" position. When they reached the end of the driveway, Gillin heard a shot and fell to the pavement. Although the bullet had gone through his lung, punctured an artery, and fractured a rib, Gillin survived. Craig was not apprehended at that time.

On June 6, 1982, Craig opened his residence door to find two Berkeley police officers who said they had come to execute a search warrant. Craig tried to slam the door, but the police tackled him. They found that he had a loaded .357 magnum strapped to his waist in a handmade holster. The officers also found a loaded .22 caliber pistol in Craig's rear pocket, and an ice pick in a specially sewn pouch inside his shirt.

On January 3, 1983, Craig was found guilty by a jury of attempted murder and possession of a dirk (ice pick). He was sentenced to fourteen years imprisonment. The California Court of Appeal set aside the conviction on the ground that the trial court had erroneously instructed the jury that implied malice was an element of attempted murder.

When the state brought the charges again, Craig entered a plea of nolo contendere to the charge of attempted second degree murder pursuant to a plea agreement that provided for an evidentiary sentencing hearing. At the sentencing hearing, Craig's counsel argued for sentencing under California's assault with a deadly weapon statute, while the prosecutor pressed for sentencing based upon attempted murder. The court sentenced Craig to seven years for attempted second degree murder, with his sentence enhanced by three years for the use of a firearm.

Craig sought to have his plea set aside in state court. This effort was unsuccessful. He next brought a petition for habeas relief in the district court. The district court denied Craig's petition, as well as his subsequent motion for reconsideration. Craig appeals.

ANALYSIS

At the outset we must consider our jurisdiction to hear this appeal. In its brief, the government raises the question of whether Craig's September 19, 1988 notice of appeal to this court was timely. On February 2, 1988 the district court denied Craig's petition for writ of habeas corpus. On February 23, 1988 Craig filed a motion to reconsider pursuant to Fed. R. Civ. P. 59(e). On the same day, Craig filed a notice of appeal with this court. On March 21, 1988 the district court denied the motion to reconsider on the ground that it lacked jurisdiction because Craig had appealed to this court. On April 5, 1988 however, this court dismissed Craig's appeal for lack of effective notice because Craig had filed a motion to reconsider with the district court. Therefore, on May 31, 1988, by an amended order superseding its March 21st order, the district court assumed jurisdiction of Craig's motion to reconsider and requested further briefing. On August 31, 1988 the district court denied the motion to reconsider. Finally, on September 19, 1988 Craig filed the present notice of appeal.

As the government points out, Craig's February 23rd motion to reconsider was not timely under Rule 59(e). That rule provides that " [a] motion to alter or amend the judgment shall be served not later than ten days after entry of the judgment." Fed. R. Civ. P. 59(e). Craig's motion, at the earliest, was served on February 19, 1988, more than ten days after the district court's entry of judgment.1 

Thus the following reasoning renders Craig's September 19th notice of appeal untimely: (1) we declared Craig's February 23rd notice of appeal to be of no effect; (2) because Craig's motion to reconsider was not timely in the first place, the district court did not have jurisdiction over the motion to reconsider; therefore, even though Craig appealed from the district court's August 31st denial of that motion in a timely manner, the date of that decision is irrelevant; (3) the September 19th notice of appeal was not timely with regard to the district court's February 8th decision. Fed. R. App. P. 4(a) (1) ("notice shall be filed ... within thirty days after the date of entry of the judgment or order appealed from").

Nevertheless, we conclude that we do have jurisdiction of Craig's appeal. We dismissed Craig's appeal on April 5th pursuant to Acosta v. Louisiana Dept. of Health and Human Resources, 106 S. Ct. 2876 (1986), and declared his notice of appeal ineffective. This decision appears to have been erroneous. While it is true that under Fed. R. App. P. 4(a) (4) a notice of appeal filed before resolution of a timely Rule 59(e) motion has "no effect," Craig's Rule 59(e) motion was not timely. Rule 4(a) (4) expressly refers to "timely" motions. Fed. R. App. P. 4(a) (4). While it makes sense for an appellate court to decline jurisdiction of a case in which a motion to reconsider is pending, the same is not true where the district court's jurisdiction over the motion to reconsider is defective. Thus we conclude that Craig's February 23rd notice of appeal should have been deemed effective by this court. Cf. Fiester v. Turner, 783 F.2d 1474 (9th Cir. 1986).

This reasoning, however, applies only to Craig's present appeal of the district court's February 8th order. It does not apply to the district court's August 31 decision, as the district court never did have jurisdiction over Craig's Rule 59(e) motion. However, this court can construe that motion as one for relief from judgment under Fed. R. Civ. P. 60(b). Id. at 1476; Rodriguez v. Southern Pacific Transportation Co., 587 F.2d 980, 981 (9th Cir. 1978). "So viewed, the order is appealable but reviewable only for abuse of discretion in denying the motion for reconsideration--not for error in the underlying judgment." Fiester, 783 F.2d at 1476.

In light of the foregoing, we review the district court's February 8 decision denying Craig's habeas corpus petition de novo. Chizen v. Hunter, 809 F.2d 560, 561 (9th Cir. 1986). The district court's August 31 decision is reviewed for abuse of discretion. Fiester, 783 F.2d at 1476.

A. Assistance of Counsel and Voluntariness of Nolo Plea

"Arguments II, III and IV" of Craig's brief, as well as much of "Arguments VII and VIII" are directed toward demonstrating that Craig had ineffective assistance of counsel at his trial and that his subsequent nolo plea was involuntary. The district court appropriately analyzed these claims together, and we agree with its conclusions.

As the district court noted, a nolo plea in California has the same effect as a guilty plea (Cal.Penal Code Sec. 1016(3)), a fact that forecloses consideration of most alleged constitutional deprivations occurring prior to the entry of the plea. Hudson v. Moran, 760 F.2d 1027, 1029-30 (9th Cir.), cert. denied, 474 U.S. 981 (1985) ("as a general rule, one who voluntarily and intelligently pleads guilty to a criminal charge may not subsequently seek federal habeas corpus relief on the basis of pre-plea constitutional violations"). Thus a defendant may attack only the "voluntary and intelligent character of the guilty plea" by showing that the advice he received from counsel was not "within the range of competence demanded of attorneys in criminal cases." Id. at 1030 (citations omitted). After reviewing the record we conclude, as did the district court, that Craig's plea was indeed voluntary and intelligent. Furthermore, we agree with the district court that at all times the performance of Craig's counsel fell within the acceptable range of professional competence as defined by Strickland v. Washington, 466 U.S. 668, 687 (1984).

In "Argument V" of his brief, Craig complains about the loss of what he calls "earned and liberty interest entitled statutory day-for-day sentence time reduction" pursuant to Cal.Penal Code Sec. 2933. As the district court correctly stated, section 2933 does not create a constitutionally protected liberty interest. Toussaint v. McCarthy, 801 F.2d 1080, 1094-95 (9th Cir. 1986), cert. denied, 481 U.S. 1089 (1987). In addition, to the extent that Craig raises one, this court has recently rejected an equal protection-based challenge of the statute in Kalka v. Vasquez, 867 F.2d 546, 547 (9th Cir. 1989).

In "Argument IX" of his brief, Craig contends the district court erred in denying his request for appointed counsel. This court reviews such a denial for abuse of discretion. Chaney v. Lewis, 801 F.2d 1191 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987). "Indigent state prisoners applying for habeas corpus relief are not entitled to appointed counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations." Id. We have reviewed the record, and find no abuse of discretion.

In "Argument VIII" of his brief, Craig alleges that the district court made numerous errors in its August 31 order denying his motion to reconsider. As noted earlier, the district court's denial is reviewed for abuse of discretion. Much of this "Argument" repeats arguments already discussed in Part A above. One argument not previously discussed involves Craig's contention that the district court erred in failing to treat his habeas petition as a writ of mandate and a writ of coram nobis as well. Neither of these extraordinary writs is appropriate in federal court. A coram nobis petition cannot be used in federal court to attack a state criminal judgment. See Sinclair v. State of Louisiana, 679 F.2d 513, 514 (5th Cir. 1982). Nor is a writ of mandamus available in federal court to compel conduct by state officers. See Harris v. Department of Corrections, 426 F. Supp. 350, 351-52 (W.D. Okla. 1977).

In "Argument X" of his brief, Craig complains about a prospective parole condition which purportedly bars him from Alameda County, his "home region." This claim was not raised until after the district court's denial of the original habeas corpus petition. The district court did not abuse its discretion in concluding that Craig's failure to exhaust state remedies before bringing his habeas petition foreclosed relief in federal court. See Granberry v. Greer, 107 S. Ct. 1671, 1673-74 (1987) and Lindquist v. Gardner, 770 F.2d 876, 877 (9th Cir. 1985) ("Normally, a federal court will not entertain a state prisoner's petition for a writ of habeas corpus unless the petitioner has exhausted available state judicial remedies.").

Craig's brief raises a wide array of arguments, some of which are made for the first time on appeal and thus were not considered by the district court. This court's jurisdiction to decide issues raised for the first time on appeal is discretionary, but exercised only if the issues are purely legal, central to the case, and important to the public. See Tatum v. Christensen, 786 F.2d 959, 963 (9th Cir. 1986) (overruled on other grounds by Wallace v. Christensen, 802 F.2d 1539, 1542 (9th Cir. 1986) (en banc)).

In "Argument I" of his brief, Craig details a theory explaining why he was entitled to carry the gun he used on the night of the shooting. However, Craig fails to allege any federal constitutional violation in connection with this argument. In "Argument VI" of his brief, Craig states that he has been medically mistreated in prison, and urges this court to "void his conviction" on this ground. In Crawford v. Bell, 599 F.2d 890 (9th Cir. 1979), we explained that a prisoner's complaints that terms and conditions of his confinement constitute cruel and unusual punishment, violate due process, or abridge constitutionally protected privacy interests are not redressable by a habeas corpus petition. Id. at 891-92. "The appropriate remedy for such constitutional violations, if proven, would be a judicially mandated change in conditions and/or an award of damages, but not a release from confinement." Id. at 892.

None of Craig's other arguments raised for the first time on appeal merit review.

CONCLUSION

The decisions of the district court denying Craig's petition for habeas relief and denying his subsequent motion for reconsideration are AFFIRMED.

 *

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

 1

The date of service, rather than filing, is determinative. Calhoun v. United States, 647 F.2d 6, 8 (9th Cir. 1981) (disapproved on other grounds by Acosta v. Louisiana Dept. of Health and Human Resources, 106 S. Ct. 2876 (1986)). While unclear from the record exactly when it was served, Craig himself dated his motion "February 19."