Unpublished Disposition, 902 F.2d 42 (9th Cir. 1989)

MEMORANDUM^** 

Urbanec is a state prisoner who appeals pro se the district court's denial of his petition for writ of habeas corpus. He challenges his corrected sentence and the voluntariness of his plea, alleging ineffective assistance of counsel. We affirm.

In November, 1975, Urbanec and three women agreed to commit a robbery and steal a car. In the course of the robbery, the victim was killed. Urbanec gave a recorded confession to the police. He was charged with first degree murder, armed robbery, and kidnapping.

Urbanec's attorney advised him that if he went to trial, he would face a possible death penalty. He negotiated a plea agreement under which the armed robbery and kidnapping counts would be dropped and Urbanec would be sentenced to life in prison with no possibility of parole for 25 years. Urbanec pleaded guilty to first degree murder. He admitted to the state court that he intended to rob the victim but, according to Urbanec, he also stated that he did not do the actual killing. Nevertheless, Urbanec did not challenge the presentence report or the government's factual basis for the plea.

The court accepted the plea as voluntary and stated orally that Urbanec would not be eligible for parole for 25 years. The sentence later entered in the record, however, did not mention parole. In 1987, Urbanec discovered the error and began habeas proceedings. He first brought a motion in state court under Ariz.R.Crim.P. 32 challenging his plea and the sentence. The sentence was corrected to conform to the plea agreement. Other challenges brought by Urbanec were denied without an evidentiary hearing. Urbanec's state appeals were dismissed.

In 1988, Urbanec brought this petition for a writ of habeas corpus in federal court. He alleges that the state's correcting the sentence was improper and he should be allowed to replea. He also contends that his plea was involuntary because it was based on erroneous advice from his attorney, who told him that he faced a possible death penalty, failed to advise him that he could not be convicted on the testimony of his accomplices, and failed to pursue an intoxication defense. He also argues that his attorney's conduct raises questions of fact which require an evidentiary hearing, which he has been denied.

We have jurisdiction over this timely appeal under 28 U.S.C. §§ 2253 and 1291. Urbanec has exhausted his state remedies and a certificate of probable cause was entered on January 10, 1989.

We review the district court's determination of the validity of a guilty plea de novo. Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir. 1986). The district court's determination regarding ineffective assistance of counsel is reviewed de novo, although the district court's factual findings are reviewed under the clearly erroneous standard. United States v. Layton, 855 F.2d 1388, 1415 (9th Cir. 1988).

Urbanec first challenges the corrected sentence imposed by the state court at the time of his motion under Ariz.P.Crim.P. 32. He argues that because the original sentence did not mention parole it did not conform to the plea agreement; the sentencing court therefore rejected the plea; and by not granting him an opportunity to replea, the state has violated Ariz.R.Crim.P. 17.4(e) ("If an agreement or any provision thereof is rejected by the court, it shall give the defendant an opportunity to withdraw his plea.").

We must reject Urbanec's argument. First, correcting the plea did not violate state law. Ariz.Rev.Stat. Sec. 13.4037(A) authorizes the Arizona Supreme Court to correct an illegal sentence to conform to a verdict. The statute has not been limited to acts by the state supreme court. See State v. Gourdin, 156 Ariz. 337, 751 P.2d 997, 999 (App.1988) (appellate court may correct "technically improper" sentence to conform to plea "to give the defendant exactly what he bargained for without prejudice to him and without any necessity for withdrawal of the plea.").

Arizona courts have also held that failure to mention parole in a sentence does not violate a plea agreement. In State v. Parle, 110 Ariz. 517, 521 P.2d 604, 608 (1974), the court held there was "no such sentence as life imprisonment without parole." The statute under which Urbanec was sentenced specifies the exact sentence for which Urbanec bargaineD. Ariz. Rev.Stat. Sec. 13-703(A), like former Sec. 13-453, authorizes "custody of the state department of corrections for life, without possibility of release on any basis until the completion of the service of twenty-five calendar years."

Furthermore, in order to state a claim for federal habeas relief, a state prisoner must allege that his detention violates federal law: the federal Constitution, a federal statute, or a treaty. 28 U.S.C. § 2241(c); Rose v. Hodges, 423 U.S. 19, 21 (1975) (per curiam). Interpreting Urbanec's pro se petition and brief liberally, as we must, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we construe Urbanec to allege a violation of his due process rights. Due process requires that a guilty plea be voluntary and knowing. See Boykin v. Alabama 395 U.S. 238, 242 (1969); McCarthy v. United States, 394 U.S. 459 (1969). F.R.Crim.P. 11, after which Ariz.R.Crim.P. 17.4 was patterned, "is designed to assist the [federal] judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary" as well as knowing. McCarthy, 394 U.S. at 465-66, 472 (noting the rule itself has not been held constitutionally mandated); Heiden v. United States, 353 F.2d 53, 55 (9th Cir. 1965). Correcting a sentence to conform to a plea does not violate the rule. See United States v. Segal, 549 F.2d 1293, 1296 (9th Cir. 1977) ("It is the taking of the plea, not the imposition of sentence or revocation of probation, to which the rule is addressed."). Arizona courts have come to the same conclusion regarding the state rule. State v. Pyeatt, 135 Ariz. 141, 659 P.2d 1286, 1288 (Ariz.App.1982) (purpose of corrective sentence is to reflect intent of the parties); cf. State v. Maricopa County, 125 Ariz. 575, 611 P.2d 928 (1980) (en banc) (court's significantly lower sentence violates plea).

Urbanec does not contend that he did not ultimately get the sentence that he and the state intended. The district court, examining the record, concluded that the judge who accepted the plea and later entered the sentence intended to provide for parole. We see no violation of due process, state law, or the plea agreement. We affirm.

Urbanec next argues that his plea is invalid because he received ineffective assistance of counsel.

To be valid, a guilty plea must be voluntarily and intelligently made by a "competent defendan [t] with adequate advice of counsel." Brady v. United States, 397 U.S. 742, 758 (1970); Torrey v. Estelle, 842 F.2d 234, 237 (9th Cir. 1988) (voluntariness of plea turns on effective assistance of counsel); Tollett v. Henderson, 411 U.S. 258, 265-66 (1973) (validity of conviction turns on validity of plea).

To establish a claim of ineffective assistance, the petitioner must show that counsel's advise was not "within the range of competence demanded of attorneys in criminal cases," Hill v. Lockhart, 474 U.S. 52 (1985), and that absent the erroneous advice, the defendant would not have pleaded guilty but would have insisted on going to trial. Id. at 59; United States v. Freeney, 841 F.2d 1000, 1002 (9th Cir. 1988). See also Strickland v. Washington, 466 U.S. 668, 687 (1984) (discussing ineffective assistance at trial); McMann v. Richardson, 397 U.S. 759, 771 (1970) (applying Strickland standard of attorney competence to guilty pleas).

a. Death Penalty

Urbanec first argues that he was "induced" to plead guilty because he was told by his attorney that he faced a possible death penalty. Urbanec argues that this advice was erroneous because in 1975, no Arizona court had imposed the death penalty for the aggravating circumstance of "pecuniary gain" or felony murder.

We must reject Urbanec's argument. The Arizona statute in effect in 1975 provided by its terms that "pecuniary gain" could be an aggravating circumstance justifying the death penalty. Ariz.Rev.Stat. Sec. 13-703(F) (5). The 1975 statute was enacted in 1973 in response to Furman v. Georgia, 408 U.S. 238 (1972), in which the Supreme Court required that state death penalty statutes specify such circumstances. The new "pecuniary gain" provision was not challenged between 1973 and 1975, but the Arizona courts upheld its application at the first opportunity. See State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980) (en banc). Before 1975, however, and after Furman, Arizona courts consistently held the Arizona death penalty statutes to be constitutional. See State v. Richmond, 114 Ariz. 186, 560 P.2d 41, 49-50 (1976) (en banc). Arizona courts had also upheld application of the death penalty to felony murder, even in the case of a guilty plea. See State v. Endresen, 498 P.2d 454 (1972).

Urbanec relies on State v. Verdugo, 112 Ariz. 208, 541 P.2d 388 (1975) (en banc), to support his argument. But the Verdugo court discussed only the aggravating circumstance of placing another in grave danger, finding in the facts of the case a lack of direct evidence of that circumstance. The state simply did not raise the issue of pecuniary gain, even though it could have. See 541 P.2d at 392.

A guilty plea may be involuntary when the petitioner's counsel greatly overestimated a defendant's potential sentence. See Torrey, 842 F.2d at 237; Iaea, 800 F.2d at 864-65 ("gross mischaracterization" when attorney told petitioner he could be sentenced under a minimum sentencing statute that did not apply to him); Crooks v. United States, 461 F.2d 530, 532 (5th Cir. 1972) (attorney told defendant he faced up to 60 years when maximum was 10 years).

Urbanec's circumstances are vastly different. Even if the "pecuniary gain" provision of Arizona's revised death penalty statute had not been applied by 1975, Urbanec's original charge was for armed robbery, kidnapping and first degree murder. Urbanec does not argue that the death penalty was not available for that combination. Fear of a possible death sentence does not make a plea involuntary. Brady, 397 U.S. at 755. The district court concluded that Urbanec's attorney's advice was not erroneous. We affirm.

b. Uncorroborated Testimony of Accomplices

Urbanec next argues that his attorney failed to advise him that, in 1975, he could not have been convicted solely on the basis of uncorroborated testimony by his accomplices. Urbanec did not raise this issue in the district court and the state does not respond to his argument. Nevertheless, we may reject this argument as well.

Urbanec correctly states that former Ariz.Rev.Stat. Sec. 13-136 (repealed 1977), provided

A conviction shall not be had on the testimony of an accomplice unless the accomplice is corroborated by other evidence which, in itself and without aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

See State v. Sheldon, 91 Ariz. 73, 369 P.2d 917, 920 (1962) (en banc) (quoting statute).

Urbanec argues that because there was no evidence besides the testimony of his accomplices that proved he committed the murder, he could not have been convicted. However, both cases cited by Urbanec defeat this conclusion. In Sheldon, the court held that corroborating evidence need not directly connect the defendant with the crime, but merely lend credibility to the statements of the accomplice. 369 P.2d at 921. In State v. Turner, 94 Ariz. 309, 383 P.2d 866 (1963), the court also emphasized that the corroborating evidence need not establish guilt, but only tend to connect the defendant with the crime. 383 P.2d at 867. Turner involved evidence such as clothing and stolen goods. In Sheldon, the court found incriminating statements by the defendant to be corroborative.

Several facts, such as Urbanec's confession, could have been considered corroborative by a trial court. The district court examined the record and found that the state had a strong case against Urbanec. Whether or not Urbanec would ultimately have been convicted at trial, we conclude that conviction was not impossible. Urbanec's attorney's advice on this issue was not deficient.

c. Intoxication Defense

Urbanec next contends that his attorney failed to investigate an intoxication defense for which "there was evidence worth exploring." He concedes that he probably could not now prove whether or not he was intoxicated at the time of the crime, but argues that his attorney should have advised him that such a defense might have been available.

We are highly deferential and "indulge [ ] a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " Freeney, 841 F.2d at 1002; Torrey, 842 F.2d at 237. We may look to the circumstances of the case to determine whether advice was reasonable. United States v. Sutton, 794 F.2d 1415, 1422 (9th Cir. 1986). The petitioner bears the burden of showing it was not. Strickland, 466 U.S. at 687. Even if the attorney's advice fell below an objective standard of reasonable competence, the petitioner must still show that he suffered prejudice; "resolution of the 'prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial." Hill, 474 U.S. at 59.

Under Arizona law in 1975,¹  as now, intoxication was a defense only to the element of specific intent, not the substantive crime of murder.²  See State v. Cooper, 529 P.2d 231, 233 (1974) (en banc). First degree murder was a crime that required either specific intent (malice) to kill the victim or intent to commit an aggravating crime, such as robbery or kidnapping.³ 

The record shows that Urbanec admitted in court that he intended to rob the victim, satisfying the intent element of the aggravating crime. In addition, to defeat intent to commit murder, the evidence had to show "that the drinking had such a substantial effect on [the defendant] that he could not harbor malice." State v. Edgin, 110 Ariz. 416, 520 P.2d 288, 290 (1974) (en banc). The state argues that it is unlikely this defense could have succeeded at trial because, for example, Urbanec drove the car with the victim's body to the next county and later had a clear recollection of the event, leading police to the exact site. Urbanec does not deny these facts.⁴ 

The district court did not reach the prejudice inquiry because it reviewed the state court record and found the attorney's advice competent. The court found that Urbanec made no mention of intoxication to his attorney, nor did he ever claim that he was intoxicated at the time of the crime or make any showing of other specific facts that would support his argument. On appeal, Urbanec does claim that he was "constantly under the influence of drugs and alcohol up to and through the time of the offense" and that he "can prove that there was strong evidence to support an intoxication defense." But he still does not claim that he ever mentioned this to his attorney, though he alleges that his lawyer "knew there was evidence worth exploring." He argues instead that his lawyer simply didn't care about his case and presents documents that purport to show this.

While Urbanec's attorney's attitude may have been less than admirable, this does not satisfy Urbanec's burden to show incompetence. An attorney has no duty to advise his client of every conceivable defense or pursue every factual inquiry. Tollett, 411 U.S. at 267-68; Iaea, 800 F.2d at 865 n. 4. The petitioner must show "serious dereliction" by the attorney so that the guilty plea was not a knowing and intelligent act. McMann v. Richardson, 397 U.S. 759, 774 (1970).

Furthermore, Urbanec has failed to allege facts that show prejudice. Urbanec faced charges of armed robbery, kidnapping and first degree murder, with a possible death sentence. The only potential defense he identifies in his petition is intoxication. Yet he has readily admitted he had intent to commit the aggravating crime of robbery and his only corroborated claim is that his attorney didn't care about his case.

The Supreme Court has cited the failure to raise an intoxication defense as an example of an ineffectiveness claim that fails to show prejudice. See Hill, 474 U.S. at 59. Urbanec has alleged no facts that show that he would have insisted on going to trial or that it was likely his defense would have succeeded. We conclude that Urbanec has not satisfied the two-part test of Hill. See Freeney, 841 F.2d at 1002 ("Given this alternative, it is improbable that [he] would have chosen to go to trial.").

Finally, Urbanec argues that because he "could raise ... numerous factual questions," call unspecified witnesses and produce documents to prove his claims, he has raised unresolved questions of fact regarding his attorney's conduct and is at least entitled to an evidentiary hearing. He also says that his behavior at the time of the crime presents questions of fact which require an evidentiary hearing. The record shows no evidentiary hearing on Urbanec's claims has been held by the state or federal courts.

Because the district court reviewed the state court record and concluded that Urbanec's attorney's advice was not deficient, it made no specific finding whether Urbanec would have insisted on trial if he had been advised of this defense. We have remanded for factual findings if the district court did not apply Hill when the record revealed "special circumstances" showing "particular reliance" on erroneous advice, see Iaea, 800 F.2d at 865-66 (defendant reluctant to plea but for false sentencing information), or where claims were based on occurrences outside the record, see United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir. 1988) (plea coerced by secret agreements).

But such a hearing is mandatory only if the petitioner would be entitled to relief if all of the alleged facts were true. See Townsend v. Sain, 372 U.S. 293, 312 (1963). An evidentiary hearing is not required if the defendant has not alleged facts that show he would have insisted on going to trial but for the erroneous advice, even if no factual hearing had been held by state court. Hill, 474 U.S. at 60. Because Urbanec has not shown prejudice, we conclude that an evidentiary hearing is not required.

CONCLUSION

We agree with the district court that the state court did not violate the plea when it corrected Urbanec's sentence to conform to the plea agreement. Similarly, his attorney's advice was not erroneous regarding a possible death penalty, and the testimony of Urbanec's accomplices was not uncorroborated. Urbanec has alleged no facts that show a likelihood that an intoxication defense would have succeeded at trial or that he would have insisted on going to trial absent the allegedly erroneous advice.

The district court's order denying Urbanec's petition for writ of habeas corpus is

AFFIRMED.