Unpublished Disposition, 883 F.2d 1024 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1024 (9th Cir. 1989)

Javier Munoz SEGURA, Petitioner-Appellant,v.Eddie YLST, Warden, et al., Respondent-Appellee.

No. 88-6571.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 11, 1989.Decided Aug. 23, 1989.

Before JAMES R. BROWNING, FARRIS and CANBY, Circuit Judges.


MEMORANDUM* 

Segura was charged by California with first-degree murder and use of a firearm. He pleaded no contest to voluntary manslaughter and use of a firearm. Under his plea agreement, he faced a maximum sentence of thirteen years in prison and a minimum of three. The court imposed a sentence of eight years in prison and three years on parole. The court failed to inform Segura at the time of his plea that the three-year parole term was mandatory. In addition, the court was mistakenly informed Segura was not eligible for probation.

Segura sought habeas corpus. The state court agreed with Segura's claims and offered to set aside Segura's plea. Segura rejected the offer. The court then upheld the original sentence.

As the state court recognized, failure to inform Segura of the mandatory three-year parole term undermined Segura's plea. See Carter v. McCarthy, 806 F.2d 1373, 1375-76 (9th Cir. 1986). The appropriate remedy was either specific performance of the plea agreement excluding a mandatory parole term or withdrawal of the plea. See id. at 1377 (citing Santobello v. New York, 404 U.S. 257, 263 (1971)).

Specific performance was inappropriate. The statute required imposition of the three-year parole term. In any event, the plea agreement provided Segura could receive up to thirteen years in prison, and his sentence was less than that even including the three-year parole term. Withdrawal of the plea was also inappropriate. Segura rejected the court's offer to vacate his plea with full knowledge of the mandatory parole term. His reason for wishing to preserve his plea is obvious, but by doing so he necessarily waived his right to challenge the plea as involuntary or based on inadequate knowledge.

The court's mistaken belief that Segura was not eligible for probation did not violate Segura's right to due process. See Engle v. Isaac, 456 U.S. 107, 121 n. 21 (1982) ("a 'mere error of state law' is not a denial of due process"). Whether to deny probation was within the sound discretion of the trial court. Arketa v. Wilson, 373 F.2d 582, 583 (9th Cir. 1967) (citing Cal.Pen. Code Sec. 1203). The court noted at sentencing that even if Segura had been eligible for probation, he was "not a suitable candidate." The same judge at the habeas hearing, realizing his earlier mistake, reaffirmed his belief that Segura was "not a suitable candidate for probation." The court's original error was harmless.

Segura complains that another prisoner's record of prior convictions had been included in Segura's sentencing file. However, the sentencing judge stated he had not in fact used it, and Segura offered no evidence to rebut the presumption of correctness accorded a state court's factual findings. See 28 U.S.C. § 2254(d).

Segura's contentions that he was entitled to a new sentencing report at his state habeas hearing also fails. He was not resentenced at his habeas hearing. He rejected the opportunity to withdraw his plea, and his original sentence remained unchanged.

Segura was not denied effective assistance of counsel at his state habeas corpus hearing. Counsel was appointed but relieved at Segura's request. A defendant who relieves counsel and proceeds pro se cannot later assert "the quality of his own defense amounted to a denial of 'effective assistance of counsel.' " Faretta v. California, 422 U.S. 806, 834 n. 46 (1975).

Segura's remaining contentions were raised by Segura for the first time on appeal. We therefore do not consider them. International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985).

AFFIRMED.

 *

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