Unpublished Disposition, 935 F.2d 277 (9th Cir. 1986)

MEMORANDUM^** 

Bob Young appeals from the denial of his petition for a writ of habeas corpus. This court has jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the district court's denial of the petition. See Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). We affirm.

FACTS AND PROCEEDINGS BELOW

Young was charged with first degree murder and first degree robbery on February 8, 1977. At a pretrial hearing, Young filed notice of an insanity defense. The court granted a six-week continuance to complete psychiatric testing. On the first day of trial, Young moved for acquittal based on mental irresponsibility and insanity.¹  The court refused to hear the motion on the insanity defense because it was brought too near the start of the trial. Instead, it ruled that the insanity defense could be presented to the jury. Young was convicted by a jury and sentenced to two consecutive life terms.

He sought relief by appealing his conviction and filing a personal restraint petition.²  The appeal was dismissed because Young escaped from custody while the appeal was pending. His right to appeal lapsed during the period of his escape.

When incarcerated again, Young filed a second personal restraint petition. The court of appeals remanded the petition to superior court for a reference hearing to determine whether Young was prejudiced by the trial court's failure to hold an evidentiary hearing on his motion for acquittal. The court of appeals also ordered that counsel be appointed for Young.

The reference hearing was held on February 7, 1986. The judge who denied the motion for acquittal and conducted the trial presided at the reference hearing. Young's attorney offered no new evidence but argued that Young was prejudiced because the jury, rather than the trial court, decided the insanity issue.

The court, relying on the trial court record, concluded that Young was not prejudiced by the failure to hold an evidentiary hearing on the motion for acquittal and that the evidence at trial supported the conclusion that Young was not insane during the commission of the crime. The court noted that because Young's insanity was debatable, it was a proper issue to be resolved by the jury. Defense counsel raised no objections during this hearing.

Young appealed the decision at that hearing, contending that he was denied due process because the judge was not impartial. He was the same judge who presided at the original trial. Young asserted that Washington Rule of Appellate Procedure Section 16.12, which provides that a reference hearing shall be held before a judge who was not involved in the challenged proceeding, is a codification of the due process principle that a case be heard by an impartial decision maker. The court of appeals held that Young was procedurally barred from challenging the judge's impartiality because he did not object at the time of the hearing.

Young moved to reconsider and raised a new claim of ineffective assistance of counsel. This claim was that his attorney was ineffective because she failed to object to having the same judge preside over the reference hearing as had presided over the trial. The court denied the motion. Young appealed both the due process and ineffective assistance of counsel claims to the Washington Supreme Court. The court denied review without an opinion. Young then petitioned the federal district court for writ of habeas corpus. That court granted respondent's motion for summary judgment and denied the petition and Young appeals.

DISCUSSION

The United States Supreme Court has clearly and repeatedly indicated that habeas relief is only available for detentions that violate the Constitution or applicable federal law. "State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution." Townsend v. Sain, 372 U.S. 293, 312 (1963); see also Miller v. Stagner, 757 F.2d 988, 993-94 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986).

Neither of Young's claims in his habeas petition states a deprivation of federal rights. His habeas petition must be denied.

A. Ineffective Assistance of Counsel at Reference Hearing

There is no right to counsel in a post-conviction proceeding. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). The reference hearing at issue was held as part of a post-conviction proceeding. As such, Young had no constitutional right to consult an attorney. See id.

The fourteenth amendment right to effective assistance of appellate counsel is derived entirely from the right to appellate counsel, and the former cannot exist where the latter is absent. See Miller v. Keeney, 882 F.2d 1428, 1431-32 (9th Cir. 1989) (citing Wainwright v. Torna, 455 U.S. 586 (1981) (per curiam)). Because there is no constitutional right to counsel in a post-conviction proceeding, there is no corresponding constitutional right to effective assistance of counsel in a post-conviction proceeding. See United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990).

While the Washington appellate court ordered an attorney to be appointed to assist Young in the reference hearing, this does not implicate federal constitutional rights. A state has substantial discretion to develop and implement programs to aid prisoners seeking post-conviction review without implicating the full panoply of constitutional protections. See Finley, 481 U.S. at 559. Young's claim that he was denied effective assistance of counsel states no constitutional claim for relief.

The purpose of the reference hearing was to determine if Young was prejudiced by the trial court's failure to hold a pretrial insanity hearing. Young claims that he was denied due process of law because the judge at the reference hearing was not impartial.

We disagree. Young has failed to show that the judge who presided over the reference hearing was not impartial. His habeas petition fails to raise any constitutional claim for relief.

AFFIRMED.