Unpublished Disposition, 928 F.2d 408 (9th Cir. 1991)

MEMORANDUM^** 

Wayne Leslie Koepplin, a Montana state prisoner, appeals pro se the district court's denial of his petition for habeas corpus relief. Koepplin was convicted of mitigated deliberate homicide in the death of his former wife after entering a guilty plea. He contends that the guilty plea was involuntary. In the alternative, Koepplin asserts that his guilty plea was entered into as a result of incompetence on the part of his trial counsel. We affirm.

DISCUSSION

Koepplin contends that his guilty plea was involuntary because he did not understand the nature of the charge against him. Koepplin claims that when he pled guilty to the amended charge of mitigated deliberate homicide, he did so in the belief that he was not being convicted of intending to kill his former wife. Koepplin maintains that his incomprehension stemmed from his trial counsel's failure to advise him correctly of the exact nature of the charge; namely, the meaning of the elements "purposely" and "knowingly" in Montana's mitigated deliberate homicide statute. Koepplin also asserts that his guilty plea was involuntary because his trial counsel, David Hull, did not inform him of the nature of negligent homicide, which Koepplin believes is the appropriate charge for the crime he committed. For these same reasons, Koepplin asserts in the alternative that his guilty plea was the result of incompetence on the part of Hull.

In support of his petition, Koepplin alleges that Hull mistakenly explained the charge of mitigated deliberate homicide as his not intending to kill his former wife with the blows he had struck. Koepplin cites to a letter, received by him more than six months after his guilty plea, in which Hull wrote that "... you were not convicted of intending to kill your former wife. You were convicted of mitigated, deliberate homicide which means you intended to inflict the blows which eventually resulted in her death." Koepplin also points to testimony by his present wife, Annie Koepplin, from his plea withdrawal hearing in which she stated that Hull had told Koepplin that by pleading guilty to mitigated deliberate homicide he was not pleading guilty to intentionally killing her.

We reject Koepplin's contentions. We conclude, upon review of the record, that Koepplin voluntarily entered his guilty plea and that he understood the nature of the charges against him. As such, we also reject Koepplin's assertion that his guilty plea was the result of Hull's incompetent counsel.

As a preliminary matter, we note that "it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit." Henderson v. Morgan, 426 U.S. 637, 647 (1976). Explicit inquiry by the trial judge is not required. This presumption was clearly established at Koepplin's change of plea hearing. In response to the trial judge's queries, Koepplin stated that he had been given a copy of the amended Information, which included the operative words purposely and knowingly; that he had read it; that he had fully discussed the entire matter with Hull; that he understood the nature of the charges; and that he understood the possible punishment. The record clearly indicates that Koepplin was given notice of the charge against him.

With this presumption in mind, we reject Koepplin's contention on the merits that his guilty plea was made involuntarily because he did not understand the nature of the charge against him. We do so for the following reasons. First, we reject Koepplin's contention that his statements to the trial judge concerning his understanding of the charges against him were made predicated upon Hull's mistaken representation of the nature of the charge against him. We agree with the state court's determination that the amended Information "gives, to any one of normal understanding and normal intelligence (which the defendant has according to his psychological evaluation) the elements of the crime of mitigated deliberate homicide...."

Second, we note that Koepplin's testimony was found not to be credible by the state court. At the evidentiary hearing, the state court stated that Koepplin "now regrets his plea bargain agreement and that is insufficient as a reason for this court to permit him to withdraw his plea of guilty.... th [is] Court finds that the defendant, Wayne Leslie Koepplin, was not a credible witness, either in what he said, or in the way that he said it." On the other hand, the state court found Hull's testimony that he had fully advised Koepplin of the charge against him to be credible. Credibility determinations must be given deference in a federal habeas proceeding. Title 28 U.S.C. § 2254(d) does not give federal habeas courts the license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them. Marshall v. Lonberger, 459 U.S. 422, 434 (1983). As the Supreme Court has explained, " [t]his deference requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations. Instead, it must conclude that the state court's findings lacked even 'fair support' in the record." Id. at 432. We conclude that the state court's credibility determination finds fair support in the record. Hence, we are obliged to give deference to these credibility determinations.

Third, Koepplin's contention on appeal is inconsistent with the nature of the guilty plea that was entered. Pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), a defendant who is unwilling to admit to the elements of an offense can plead guilty when confronted with overwhelming evidence that could lead to a more serious conviction. Koepplin entered an Alford plea, stating that he did not believe that he was guilty, but that " [f]rom the evidence that's been obtained in my defense, I feel that I would probably be found guilty." However, Koepplin has consistently asserted that he "only wanted to plead guilty to whatever crime he was guilty of." Appellant's Brief, at 5. If Koepplin is truthful in asserting that at the time he entered his guilty plea he believed purposely and knowingly involved no element of intent, it would not have been necessary for him to enter an Alford plea--he simply would have pled guilty.

Finally, even if Koepplin's assertions were to be believed, the advice given by Hull was not an incorrect statement of Montana law. As the State correctly notes, mitigated deliberate homicide under Montana law is established " [i]f the act which causes the death is done purposely or knowingly, deliberate homicide is committed even if death is not the intended result." State v. McKimmie, 756 P.2d 1135, 1138 (Mont.1988). In other words, specific intent to kill is not an element of mitigated deliberate homicide under Montana law. State v. Powers, 645 P.2d 1357, 1362 (Mont.1983). As such, Hull's counsel that Koepplin had not been convicted of intending to kill his former wife was not erroneous.

Accordingly, we reject Koepplin's contention that his guilty plea was entered involuntarily. For these same reasons, we also reject Koepplin's assertion of incompetence on the part of Hull.

AFFIRMED.