Unpublished Disposition, 927 F.2d 609 (9th Cir. 1991)

MEMORANDUM^** 

Larry Michael Johnson, a California state prisoner, appeals pro se the district court's denial of his petition for writ of habeas corpus. Johnson contends that he failed to challenge the admissibility of his confession to Detective Edward Mason on direct appeal because, as a layperson ignorant of the law, he did not know that the detective's conduct was improper. Appellant also asserts that he should have received an evidentiary hearing regarding his allegations that Detective Mason procured his confession "by the use of coercion, threats, and promises of leniency." Appellant's Opening Brief at 17. We affirm the district court decision.¹ 

FACTS

Following a trial by jury, Johnson was found guilty of first degree murder, attempted robbery, and burglary, for his participation in the robbery of a check cashing center. During the robbery, Johnson's partner, Lawrence Anthony, fatally shot someone with a handgun. Appellant was sentenced to a prison term of twenty six years to life.

Prior to the commencement of trial, the trial judge, upon defense counsel's request, granted a hearing to determine the admissibility of the confession Johnson allegedly made to Detective Mason. At the hearing, Detective Mason testified that he informed Johnson of his constitutional rights and did not begin questioning until Johnson stated that he understood those rights. Defense counsel's cross-examination did not vitiate Detective Mason's testimony. Moreover, defense counsel declined the opportunity to present any evidence at the pretrial hearing.

On appeal, Johnson raised no issues concerning the admission at trial of his confession. Rather, he based his appeal entirely on challenges to the jury instructions. The California Court of Appeal affirmed the judgment of conviction. Petitioner then filed a writ of habeas corpus in the California Court of Appeal, alleging that Detective Mason had procured the confession through a promise of immunity, threats, and coercion. The petition was denied. Thereafter, Johnson filed two separate petitions in the Supreme Court of California: a petition for review of the Court of Appeal order denying his writ of habeas corpus, and an original petition for a writ of habeas corpus. The California Supreme Court denied both petitions without opinion, citing the following cases: In re Swain, 34 Cal. 2d 300, 304 (1949); and People v. Hill, 9 Cal. 3d 784, 786-87 (1973).

Johnson then filed a habeas petition in federal district court, asserting that his confession was coerced and induced by promises of immunity. The district court, adopting the magistrate's report and recommendation, denied the petition without a hearing because it determined that Johnson forfeited these claims by not following state procedures. In addition, the district court found that Johnson could not show actual prejudice.

STANDARD OF REVIEW

We review de novo a district court's decision to deny a petition for writ of habeas corpus. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). To the extent it is necessary to review findings of fact, the clearly erroneous standard applies. Id.

DISCUSSION

Petitioner contends that his claims are not procedurally barred because the California Supreme Court denied his petition on both procedural and substantive grounds. This claim lacks merit. The United States Supreme court has held that federal courts may not consider a federal issue on federal habeas "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision." Harris v. Reed, 489 U.S. ----, 109 S. Ct. 1044 n. 10 (1989); see also Anselmo v. Sumner, 882 F.2d 431, 433 (9th Cir. 1989). In its denial of Johnson's habeas petition, the California Supreme Court based its decision on alternative holdings. However, one of its holdings rested upon People v. Hill, 9 Cal. 3d 784, 786-87 (1973), which stands for the proposition that a petitioner who fails to raise an issue at trial or on direct appeal is procedurally barred from raising it in a collateral proceeding unless it relates to innocence or guilt.²  We therefore reject petitioner's argument that the procedural bar rule does not apply to the facts of this case.

Under Wainwright v. Sykes, 433 U.S. 72, 87-91, 97 S. Ct. 2497, 2506-09, 53 L. Ed. 2d 594 (1977), petitioner is barred from raising the claim that his confession was unconstitutionally procured unless he can show cause for the procedural default and prejudice resulting therefrom. See Engle v. Isaac, 456 U.S., at 113-14, 117, 124-35, 102 S.Ct, at 1564-65, 1566, 1570-76. " [T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 489, 106 S. Ct. 2639, 2645, 91 L. Ed. 2d 391 (1986).

Johnson argues that he did not discover until 1987 (through the assistance of a paralegal) that Detective Mason's actions were "improper as defined by decisional authority and that such provides a colorable claim as to the validity and subsequent admissibility of appellant's statement." Appellant's Reply Brief, at 2. He claims that he did not inform his attorney of Detective Mason's actions because he did not realize the legal significance of the officer's actions.³  Both the factual and legal basis of Johnson's claim existed at the time of his trial and appeals. Indeed, prior to trial, the trial judge held a hearing in which Detective Mason explicitly stated that he did not threaten, coerce, or promise immunity to petitioner. Under these circumstances, Johnson's alleged ignorance of the law and his alleged failure to inform his counsel of Detective Mason's actions do not constitute "cause" under Sykes to excuse the state procedural default.

Because petitioner does not show cause for his procedural default, we need not address the question whether he suffered actual prejudice from the district court's denial.

Johnson also argues that the district court erred in not granting him an evidentiary hearing. The state court records are adequate to review petitioner's allegations. Accordingly, no evidentiary hearing was required before the federal district court. See Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.), cert. denied, 469 U.S. 838, 105 S. Ct. 137, 83 L. Ed. 2d 77 (1984).

The district court's decision is

AFFIRMED.