Unpublished Disposition, 928 F.2d 408 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 408 (9th Cir. 1991)

Levi ABERCROMBIE, Petitioner/Appellant,v.Janet BARBOUR, Respondent/Appellee.

No. 90-35023.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 1991.Decided March 15, 1991.

Appeal from the United States District Court for the Western District of Washington, No. CV 89-328-D; Carolyn R. Dimmick, District Judge, Presiding.

W.D. Wash.




Levi Abercrombie appeals from the district court's dismissal of his habeas petition without an evidentiary hearing. He alleges that his state sentence for second degree murder was unconstitutionally enhanced by the sentencing court's consideration of prior convictions where he was either denied representation or denied effective assistance of counsel.

Under Farrow v. United States, 580 F.2d 1339, 1355 (9th Cir. 1978), "where the record shows that the petitioner was represented by counsel, the burden is on him to impeach the record." The records produced by the state were sufficient to shift the burden to Abercrombie under Farrow. The Washington Supreme Court's ruling that Abercrombie failed to raise a genuine issue of material fact as to whether he was represented by counsel was not error.

The New Mexico docket sheet reflects that Abercrombie was represented by counsel during his guilty plea and sentencing proceedings, which apparently occurred on the same day. The form's failure to list the name of defense counsel does not render the record "silent" on the question of whether counsel was present. The form is not complete, but neither is it ambiguous.

Regarding his Texas convictions, Abercrombie first argues that the fact that the state offered no documentation of two of the five convictions requires reversal under United States v. Tucker, 404 U.S. 443, 448 n. 6 (1972). All five of the alleged convictions in Texas were treated as one conviction for purposes of calculating Abercrombie's offender score. The sentencing judge sentenced Abercrombie to the shortest term within the range that would have applied even if only one of the Texas convictions were valid. Abercrombie has not shown that the sentencing court might have departed downward if it had known that, as Abercrombie alleges, two of the Texas convictions were unconstitutional.

The three Texas judgment forms state that Abercrombie was represented by counsel. The sentencing form appears on the same page as the judgment form and indicates that sentencing occurred on the same day. This documentation was sufficient to shift the burden to Abercrombie under Farrow.

Abercrombie asks us to construe his claim that his Texas conviction was unconstitutional as an allegation of both lack of assistance and ineffective assistance. We need not now decide whether his ineffective assistance claim is procedurally barred. It was not error for the Washington Supreme Court to rule that Abercrombie failed to make a prima facie showing that he had been denied his right to counsel. See Hill v. Lockhart. 474 U.S. 52, 59-60 (1985).

Abercrombie also argues that Washington unconstitutionally denies defendants an adequate forum to challenge the validity of prior convictions used to enhance sentences. He cites no authority for his argument, and we find it has no merit.



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 Circuit Rule 36-3