Unpublished Disposition, 907 F.2d 154 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 154 (9th Cir. 1987)

Robert Curt BLAYLOCK, Petitioner-Appellant,v.Harding L. STINGLEY, Parole Agent; Attorney General for theState of California, Respondents-Appellees.

No. 87-6161.

United States Court of Appeals, Ninth Circuit.

Submitted May 2, 1989.* Submission Deferred July 12, 1989.(Resubmitted July 12, 1990.Decided July 12, 1990.

Before POOLE, BEEZER and TROTT, Circuit Judges.


MEMORANDUM** 

Robert Curt Blaylock appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We affirm.

* On October 21, 1980, Blaylock was convicted in a California state court, after a plea of guilty to two counts of incest and oral copulation with a minor. Cal.Penal Code Secs. 285, 288a(b) (2) (West 1988). The court stayed sentencing so that Blaylock could receive treatment at a state hospital as a mentally disordered sex offender. See Cal. Welf. & Inst. Code Sec. 6300 et seq. (West 1984) (repealed 1981). On March 22, 1982, the court found that Blaylock was still a mentally disordered sex offender, but one who would not benefit further from treatment in the state hospital. The court sentenced him to the maximum prison term of three years and eight months. He was paroled on September 8, 1983. At that time he began serving a mandatory parole term. Cal.Penal Code Sec. 3000(a) (West Supp.1989). Between April and October 1985, Blaylock was returned to prison for a parole violation. He was discharged from all forms of custody, including parole, on March 8, 1987.

Blaylock sought state post-conviction relief, which was finally denied by the California Supreme Court. He then filed a petition for a writ of habeas corpus in the district court, alleging that his guilty plea was not knowing and voluntary because he was unaware of the parole term to follow his incarceration. The district court followed the magistrate's recommendation and denied the petition. This court granted a certificate of probable cause. See 28 U.S.C. § 2253. We have jurisdiction. Id.; Fed. R. App. P. 4(a) (1). We review a denial of a habeas petition de novo. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied, 484 U.S. 870 (1987). We review findings of fact for clear error. Id.

II

The appeal is not moot, despite Blaylock's discharge from custody. Blaylock seeks not merely a release from probation, but "that he be allowed to plea anew." It appears that he wants us to vacate his guilty plea and conviction so that he may receive a jury trial--presumably including the three counts dismissed pursuant to the plea bargain--despite having served his entire sentence for the two pled counts. Because Blaylock challenges his conviction, not just his sentence, we reach the merits of this request. See Lane v. Williams, 455 U.S. 624, 630-31 (1982). In addition, collateral consequences of the conviction remain. Blaylock must register with local police as a sex offender for as long as he lives in California. Cal.Penal Code Sec. 290 (West 1988); see, e.g., Armant v. Marquez, 772 F.2d 552, 555 (9th Cir. 1985) (petition not moot as long as collateral consequences persist), cert. denied, 475 U.S. 1099 (1986). Blaylock filed his petition while on parole, thus meeting the "in custody" requirement. 28 U.S.C. § 2254(b); Armant, 772 F.2d at 555.

III

Acceptance of a guilty plea that is not voluntary and intelligent violates due process. Carter, 806 F.2d at 1375. A plea of guilty is voluntary only when it is entered by one fully aware of its direct consequences. Id. In Carter, we held that mandatory parole terms are direct consequences of guilty pleas and that defendants who had not been informed of mandatory parole terms before pleading guilty had been denied due process. Id. at 1375-76. However, we have held that Carter does not apply retroactively to pleas like Blaylock's. Allen v. Bunnell, 891 F.2d 736, 738 (9th Cir. 1989).

Because Allen forecloses habeas relief based directly on a violation of due process, Blaylock must identify some other authority to support his claim for collateral relief. We have, for example, granted collateral relief for violations of state law.1  Federal habeas relief is appropriate "when a defendant has not been informed of a penal consequence of his guilty plea in violation of state law and the defendant shows that he was prejudiced or his rights were affected by the omission by the state trial judge." Blair v. McCarthy, 896 F.2d 436 (9th Cir. 1990), amending 881 F.2d 602 (9th Cir. 1989) (citation omitted). Here, the state court apparently violated California law by not informing Blaylock of the mandatory parole term.

The transcript of Blaylock's plea hearing reveals that, despite extensive questioning and comments by the court, the judge never specifically told Blaylock that parole was a necessary consequence of his plea. However, the judge did ascertain that Blaylock had full understanding of a written plea form he had executed, and that he assented to each of its paragraphs. One such paragraph stated:

I understand that for persons sentenced to state prison the following terms of parole apply after expiration of the prison term: determinate sentence up to 3 year parole plus up to 1 year maximum confinement on revocation.

Blaylock initialed a box indicating knowledge of, and consent to, this paragraph. He also attested to the fact that he had discussed each part of the agreement with his attorney, and understood each part. His attorney attested to the same. The magistrate's finding of fact that Blaylock knew about the parole requirement is not erroneous. There is no evidence, or even any allegation, that Blaylock's plea would have been different if in fact he was operating under the erroneous assumption that his sentence would include no post-imprisonment parole term.

In Blair, the district court's findings of fact that the petitioner was unaware of the mandatory parole term, and that he would have pled differently had he known, were not disputed. Here, the magistrate's finding that Blaylock knew of the parole term is not in doubt. We therefore conclude that Blaylock's plea was knowing and voluntary. Any error the court committed by failing to explain the parole requirement orally to Blaylock at his hearing was harmless beyond a reasonable doubt. See Wayne, 690 F.2d at 686-88; cf. Carter, 806 F.2d at 1377 (restating harmless error rule; finding error not harmless when magistrate had made finding of fact that petitioner was not otherwise aware of parole term, and would not have pled guilty if he had known).

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 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 Ninth Cir.R. 36-3

 1

It is axiomatic that a grant of federal habeas corpus relief must be based upon a finding that a state prisoner's detention violates "the constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see, e.g., Pulley v. Harris, 465 U.S. 37, 41 (1984). We may not base a grant of the writ upon an error of state law. Lewis v. Jeffers, 58 U.S.L.W. 5025, 5029 (June 27, 1990); Pulley, 465 U.S. at 41. This court, however, appears to have done exactly that in Blair v. McCarthy, 881 F.2d 602 (9th Cir. 1989), amended, 896 F.2d 436 (9th Cir. 1990)

The Blair panel's analysis, with its emphasis on the fundamental unfairness of the proceeding at issue, certainly resembles a due process inquiry. However, the Blair panel expressly declined to decide whether the state law violation amounted to a violation of federal due process guarantees. Blair, 881 F.2d at 603 n. 2. The Blair panel based its decision upon a previous Ninth Circuit case which seemed to apply a "prejudice" standard to a state law question. Wayne v. Raines, 690 F.2d 685, 687 (9th Cir. 1982), cert. denied, 464 U.S. 914 (1983). Rather than expressly grant federal habeas corpus relief because of state law error, however, the Wayne court denied the writ. Therefore, the court was not required to consider directly the effect of granting the writ upon state law grounds on the existing body of habeas corpus law. Nor do the other cases relied upon in Blair support such relief. See United States v. Timmreck, 441 U.S. 780 (1979) (unanimous Court reversing grant of relief to federal prisoner under 28 U.S.C. § 2255); Wacht v. Cardwell, 604 F.2d 1245, 1247 (9th Cir. 1979) (habeas petition failed to show real possibility of federal constitutional error). Nonetheless, Blair compels us to grant federal habeas corpus relief when a state procedural error prejudiced a defendant. Blair, 896 F.2d at 436.