Unpublished Disposition, 897 F.2d 533 (9th Cir. 1982)

MEMORANDUM^** 

Dennis Chillies, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his sentence because of the alleged delay in bringing him before a magistrate for his initial appearance, and further delay between the indictment and arraignment.

The district court denied the motion because it found Chillies pled guilty with the advice of counsel, and waived any constitutional claims that predated the plea's entry. We affirm.

Chillies's guilty plea was both counseled and voluntary. Therefore, Chillies is precluded from raising constitutional violations that arose before the plea. See United States v. Montilla, 870 F.2d 549, 552 (9th Cir. 1989).

A voluntary and intelligent guilty plea generally precludes subsequent habeas corpus relief on the basis of constitutional violations arising before the plea. See Montilla, 870 F.2d at 552. Therefore, "when a judgment of conviction upon a guilty plea has become final and the [defendant] seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary." United States v. Broce, --- U.S. ----, 109 S. Ct. 757, 762 (1989).

When a defendant challenges his guilty plea based on ineffective assistance of counsel, the two part test set forth in Strickland v. Washington, 466 U.S. 668 (1984), must be met. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Thus, the defendant must show that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. To meet the deficient performance component, the defendant must show that counsel's representation was not " 'within the range of competence demanded of attorneys in criminal cases.' " Hill, 474 U.S. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). To satisfy the prejudice component, the defendant "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59.

Chillies contends that his counsel was ineffective because he did not object during the arraignment to the post-arrest delay, and thus waived this ground for objection. However, it appears that Chillies was in state prison at the time of his arrest, and was not taken into federal custody until November 29, 1982, pursuant to a write of habeas corpus ad prosequendum. If so, Chillies's allegations of unnecessary delay are meritless, see Hitchcock v. United States, 580 F.2d 964, 966 (9th Cir. 1978) (allegation of unnecessary delay without merit where state prisoner not taken into custody until day ad prosequendum writ was executed and he was taken before magistrate), and his counsel's failure to raise this argument does not constitute ineffective assistance of counsel. See Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982).

Even assuming, however, that Chillies's counsel's performance was deficient, Chillies failed to satisfy the prejudice component of Strickland. Although Chillies stated that he would not have pleaded guilty except on the advice of his counsel, he made no showing that if his counsel had raised the delay argument he would have insisted on going to trial. See Hill, 474 U.S. at 59. Therefore, Chillies was not denied effective assistance of counsel. See id. at 58.

When a defendant challenges his guilty plea because it was not voluntary, the court must decide "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Hill, 474 U.S. at 56 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). Yet, the concern with finality narrows the scope of collateral review of an allegedly invalid guilty plea. United States v. Timmreck, 441 U.S. 780, 784 (1979). The error complained of must result in "a 'complete miscarriage of justice' or in a proceeding 'inconsistent with the rudimentary demands of fair procedure.' " Id. (citation omitted).

Chillies contends he did not wish to plead guilty but did so because he had spent so much time in jail and upon his counsel's advice. Yet, Chillies failed to set forth any facts establishing that his pleas was not the result of a knowing and voluntary choice. Accordingly, his guilty plea did not result from a "miscarriage of justice" or "denial of fair procedure" and must stand. Timmreck, 441 U.S. at 784.

Because Chillies' guilty plea was both counseled and voluntary, the district court did not err in precluding him from raising constitutional claims that predated the plea's entry. Montilla, 870 F.2d at 552.

The judgment is AFFIRMED.