Unpublished Disposition, 930 F.2d 27 (9th Cir. 1985)

MEMORANDUM^** 

PROCEDURAL AND FACTUAL BACKGROUND

Clarence Green, a Nevada state prisoner, appeals pro se the denial of his habeas petition. Green was convicted by jury trial of burglary and related crimes. Green claims he was denied his right to be brought to trial within 180 days as mandated by the Interstate Agreement on Detainers (IAD).

Green additionally argues that his due process rights were violated when the sentencing court relied upon false information in the presentence report. The federal district court denied Green relief on both grounds.

Green was arrested on March 27, 1984, by Nevada state authorities and charged with burglary and related offenses. While awaiting trial on these state charges, it was discovered that he was wanted by federal authorities in California. He was thereupon transferred to federal custody in California and incarcerated there. The Nevada charges had not been brought to trial at the time of his transfer to federal custody.

Green made a formal request on May 30, 1985, for speedy resolution of the pending Nevada charges. The request was received by the Carson City District Attorney on May 31, 1985, but was not received by the district court until the district attorney filed a motion for appointment of counsel for Green on June 14, 1985.

Counsel was appointed for Green on June 19, 1985, and a hearing was set for July 2 for the purposes of setting trial. Green's appointed counsel did not appear on that date and the hearing was rescheduled for July 9. Counsel for the state contacted Green's appointed counsel to inform him of the new hearing time and was informed that Green's counsel had a conflict on that date. Green's appointed counsel and counsel for the State of Nevada conferred with the trial judge's law clerk and agreed to a trial date of December 2, 1985. The trial proceeded as scheduled on that date and Green was convicted of the state charges and sentenced to two consecutive ten year terms of imprisonment.

Green appealed his conviction to the Nevada Supreme Court, raising the 180 day speedy trial provision of the IAD. The Nevada Supreme Court determined that the state district court did not receive actual notice of Green's request until June 14, 1984, 172 days before the trial commenced and that therefore the 180 day time constraints of the IAD had been complied with. The court below dismissed Green's habeas corpus petition, determining that the Nevada Supreme Court was correct in its interpretation of the IAD and the state court had afforded Green an opportunity to challenge the contested matters in the presentence investigation report. We affirm.

DISCUSSION

This court reviews de novo a habeas corpus petition based upon an alleged violation of the IAD pursuant to 28 U.S.C. § 2254; U.S. v. Espinoza, 841 F.2d 326 (9th Cir. 1988); Johnson v. Stagner, 781 F.2d 758 (9th Cir. 1986). To the extent it is necessary to review findings of fact, the clearly erroneous standard applies.

Article III of the IAD provides that whenever a detainer has been lodged against a prisoner,

he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint.

18 U.S.C. Appx Art. III.

Green asserts that, under Johnson v. Stagner, 781 F.2d 758 (9th Cir. 1986), his agreement to a trial date outside of the 180-day IAD time period could not constitute a waiver of his rights under the statute because it did not occur in opin court. In Johnson the trial court had granted a continuance that placed the trial date outside of the 180-day period. It was significant that the record there did not reveal whether the defendant or his counsel were present at the proceeding in which the trial court granted the continuance in question. 781 F.2d at 763. Because nothing in the record indicated that the defendant had consented to the continuance, the court correctly concluded that it could find the 180-day limit inapplicable only if there had been a showing, in a proceeding in open court, of good cause for the delay. Id. In contrast, the petitioner here expressly agreed, through his counsel, to an initial trial date of December 2, 1985. Johnson does not preclude a finding of waiver on these facts. See id. (stating that IAD applied because there was neither a showing of good cause in open court nor an express waiver).

Green also argues that he was denied due process because the sentencing court relied on false information. Green lists several incidents he contends the sentencing court relied upon and insists that they were inaccurate. Due process requires that the trial court not base a sentence on materially untrue information about the defendant's background. Townsend v. Burke, 334 U.S. 736 (1948). If the defendant raises the possibility of reliance on false information, the court must provide an opportunity for rebuttal. U.S. v. Petitto, 767 F.2d 607 (9th Cir. 1985).

The federal district court found that the trial judge did, in fact, provide Green's counsel that opportunity. "Once this opportunity to register objections is afforded to petitioner, petitioner must then show that it affirmatively appears in the record that the court based its sentence on improper information." (Order, pp. 4-5). (Emphasis in original, citing Farrow v. U.S., 580 F.2d 1339 (9th Cir. 1978) (en banc).) On review, the district court found from the record that the trial court gave the defendant this opportunity pursuant to both Nevada law and the Fourteenth Amendment. It further found no indication that the trial court based its sentence on false information. The record supports the district court's findings.

For the reasons stated, the dismissal of Green's habeas corpus petition is AFFIRMED.