Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

MEMORANDUM^** 

Appellant William Toward appeals pro se the district court's order dismissing his petition for a writ of habeas corpus. Toward challenges his guilty plea in Los Angeles County Municipal Court to 28 counts of armed robbery. Toward claims he was denied his due process rights because the prosecutor breached a plea agreement. Toward also claims he was not afforded an opportunity to file written objections to the magistrate's report, and that the district court did not conduct a de novo review of the record before adopting the magistrate's report. Because these contentions are without merit, we affirm.

Toward's primary contention is that the prosecutor violated an agreement between the prosecutor and Toward in which Toward would plead guilty to all charges in return for the prosecutor's refraining from recommending a specific sentence. Toward claims that the alleged agreement was made prior to sentencing while Toward was in a holding cell. At sentencing, however, the prosecutor recommended to the court that Toward receive a 30-year prison term; this was the sentence the court actually imposed.

As evidence of the alleged agreement, Toward points to the written corrections he submitted along with the probation report. Toward's corrections stated that "there was no plea bargain. It was an open plea with the prosecution making no sentence recommendation." The prosecutor agreed that Toward's corrections could be submitted to the court in addition to the probation report. Toward claims that by not objecting to the submission of these corrections, the prosecutor adopted as truth the statements contained therein.

The magistrate, whose findings were later adopted by the district court, found that by not objecting to the court's receipt of the document, the prosecutor "certainly" did not admit the truth of everything contained in that document. We cannot say that this factual finding is erroneous. Brewer v. Raines, 670 F.2d 117, 120 (9th Cir. 1982).

Toward also claims that the prosecutor did not deny the existence of the alleged promise at sentencing. At sentencing, the prosecutor stated, " [T]here was no plea bargain. It is an open plea. The court is free to sentence the defendant to 60 years in the state prison. However, I'm entitled to state my views to the court...." Toward urges this court to construe the prosecutor's statements as an implicit admission of the existence of the alleged agreement. At the very least, Toward argues, the prosecutor's statements create a factual dispute which warrants an evidentiary hearing. We disagree. The district court found that the prosecutor denied any alleged agreement. In light of the prosecutor's assertion ("there was no plea bargain"), we cannot say this factual finding was erroneous. In addition, the sentencing court's failure to sentence Toward without the recommendation of the prosecutor was tantamount to a refusal to believe Toward's testimony. Marshall v. Lonberger, 459 U.S. 422, 433-34 (1983). This is an implicit state court finding of fact which "shall be presumed to be correct." 28 U.S.C. § 2254(d). An evidentiary hearing would be of no use here, as the only two parties to the alleged agreement have already made their positions known to the state court. We affirm.

Toward next claims that the district court erred first, by adopting the magistrate's final report without allowing opportunity for written objection, and second, by failing to demonstrate on the face of its order that it had conducted a de novo review of the record. The latter contention is without merit. The district court's order adopting the magistrate's reports and recommendations stated that "the Court has reviewed the petition and other papers herein, along with the attached reports and recommendations of the United States Magistrate, and hereby approves and adopts the latter." This language is sufficient to demonstrate that the district court did indeed conduct a de novo review of the record.

Toward's contention that he was not given an opportunity to file written objections to the magistrate's final report is correct, but provides no basis for relief. Our review is de novo and we have considered all of the legal contentions that petitioner would have presented to the district court. They are without merit.

AFFIRMED.