Unpublished Disposition, 927 F.2d 610 (9th Cir. 1988)

MEMORANDUM^** 

FACTS

Appellant Valdemar Schmidt was charged with murder with use of a deadly weapon, pursuant to Nevada Revised Statutes 174.065(2). This charge subjected appellant to a possible death sentence upon conviction. Notwithstanding Schmidt's assertion that Raymond Woods actually committed the murder, Schmidt's attorney recommended a plea bargain.¹  Pursuant to an agreement between the State, the defense and the court, Schmidt agreed to plead guilty to a lesser charge of first degree murder in exchange for a sentence of life with the possibility of parole after 10 years. At the plea hearing the judge personally addressed Schmidt to insure that he was aware of his constitutional rights, and that the plea was being entered knowingly, intelligently, and voluntarily. When an apparent misunderstanding arose about the minimum amount of time Schmidt would have to serve in jail, the judge held two separate hearings to clarify the matter. By the time the judge accepted the plea, he had expressly given Schmidt three opportunities to withdraw it.

Schmidt did not appeal the sentence. Over two years later, however, he filed a Petition for Writ of Habeas Corpus in the Eighth Judicial District Court of Nevada which was denied without an evidentiary hearing. Schmidt then appealed to the Nevada Supreme Court which entered an order dismissing the appeal and ruled that Schmidt was not entitled to an evidentiary hearing.

Schmidt then filed a Petition for a Writ of Habeas Corpus in the United States District Court, District of Nevada. The district court entered a judgment dismissing Schmidt's petition without an evidentiary hearing. Schmidt now appeals the district court judgment. He claims that (1) he was denied effective assistance of counsel when his attorney failed to investigate the case and coerced him into entering a guilty plea, and (2) he was prevented from exercising his statutory right to a preliminary hearing by his trial counsel's unprofessional assistance.

STANDARD OF REVIEW

We generally review de novo a district court's decision to deny a Petition for a Writ of Habeas Corpus. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989) (citing Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied 108 S. Ct. 198 (1987)). To the extent it is necessary to review findings of fact, the clearly erroneous standard applies. Id.

In reviewing the question whether petitioner is entitled to an evidentiary hearing, we must determine (1) whether petitioner's allegations, if proved, would establish the right to relief, and (2) whether the district court was required to hold an evidentiary hearing to ascertain facts to establish the truth of the allegations. Bashor v. Risley, 730 F.2d 1228 (9th Cir.), cert. denied, 469 U.S. 838, 105 S. Ct. 137, 83 L. Ed. 2d 77 (1984).

DISCUSSION

Schmidt asserts that his counsel coerced him into entering a guilty plea, and failed adequately to inform him of the minimum amount of time he would spend in prison if he accepted the plea bargain. He also alleges that his trial counsel's performance was constitutionally ineffective because his counsel failed to make a pre-trial investigation, interview potential witnesses and file pre-trial motions.

The two-part standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), applies to guilty plea challenges based on ineffective assistance of counsel. Accordingly, Schmidt must show (i) that his counsel's representation fell below an objective standard of reasonableness and (ii) that there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. A defendant who pleads guilty on the advice of counsel may successfully challenge the voluntary and intelligent character of the plea by showing that counsel's advice was not "within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763 (1970); see Tollett v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973); United States v. Rogers, 769 F.2d 1418, 1424 (9th Cir. 1985).

The record does not demonstrate that defense counsel's plea advice was incompetent. Defense counsel's plea bargain allowed Schmidt to accept ten years to life in prison; a trial on the original charges would have exposed him to a death sentence. Given the strong presumption that counsel's conduct falls within the range of reasonable professional assistance, see United States v. Rogers, 769 F.2d at 1424 (citing Strickland v. Washington, 104 S. Ct. at 2065), we cannot conclude that counsel's recommendation that Schmidt plead guilty was constitutionally insufficient.

Petitioner argues that his counsel "literally insist [ed] that petitioner-defendant enter a plea of guilty." Appellant's Reply Brief at 7. Even if we assume this fact were true, the record undermines any claim that Schmidt entered it involuntarily or unintelligently. The trial judge informed Schmidt at the plea hearing as to the import of his plea. Moreover, once Schmidt expressed some confusion about the minimum number of years he would have to spend in jail, the trial judge held two additional hearings to insure that Schmidt's plea was made voluntarily and intelligently, and to give him an opportunity to withdraw it. Indeed, at his plea hearing, Schmidt expressly stated that no one threatened him, or made any promises to induce him to enter the plea of guilty. Reporter's Transcript of Entry of Plea, at 5 (6/11/88). Schmidt offers only vague, unsubstantiated allegations, which are belied by the record. Under these circumstances, we find that he is not entitled to an evidentiary hearing. See Bashor, 730 F.2d at 1233.

Schmidt asserts that his counsel's performance was constitutionally deficient because his counsel failed to make a pre-trial investigation, interview potential witnesses and file pre-trial motions. Throughout the various proceedings, petitioner has specifically identified only one concrete failure on the part of his counsel. Schmidt believes his lawyer should have investigated Robert Woods. The record shows that the government intended to call Woods as a witness to testify that Schmidt stabbed the victim five times. Schmidt claims that Woods actually committed the murder. Petitioner claims that a reasonably competent attorney would have interviewed Woods prior to advising his client to plead guilty to a lesser charge. However, petitioner not only subsequently admitted to stabbing the victim, see id. at 7, but he does not suggest that counsel could have discovered any specific evidence that "would have led counsel to change his recommendation as to the plea." Hill, 474 U.S. at 60, 106 S.Ct at 370-71. He has not identified any other potential witnesses, nor has he alluded to any specific exculpatory evidence, that trial counsel failed to investigate. In light of these facts, petitioner's allegations even if true are insufficient to satisfy the Strickland v. Washington requirement of "prejudice."

Schmidt claims that his counsel's incompetence effectively denied him a statutory right to a preliminary hearing. This issue was not raised in his habeas petition or in the district court. An issue not raised at the district court level will not be considered on appeal. See United States v. Grewal, 825 F.2d 220, 223 (9th Cir. 1987).

CONCLUSION

Schmidt has failed to allege facts sufficient to establish constitutionally ineffective assistance of counsel under Strickland. Since he failed to raise below the question of whether his counsel's actions unconstitutionally precluded him from having a preliminary hearing, we lack jurisdiction now to consider it. Accordingly, the judgment of the district court is

AFFIRMED.