Unpublished Disposition, 937 F.2d 612 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 612 (9th Cir. 1991)

Frankie L. DENNIS, Petitioner-Appellant,v.Earl B. DOWDLE, Attorney General of the State of Arizona,Respondents-Appellees.

No. 90-15896.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 1991.Decided July 12, 1991.

Before WALLACE, Chief Judge, GOODWIN and FLETCHER, Circuit Judges.


MEMORANDUM* 

Frankie L. Dennis, an Arizona state prisoner, appeals the denial of his habeas corpus petition challenging the validity of his guilty plea. Dennis alleges ineffective assistance of counsel and a due process violation when the state courts denied him a hearing to determine whether the trial court's failure to advise him of the possibility of having to pay restitution rendered his plea involuntary.

Dennis's allegation that his due process rights were violated is unpersuasive. The state trial court fully advised Dennis before he pled guilty that he would have to make restitution. The ultimate amount ordered, thirty dollars, was treated as de minimis by the state courts. We agree and proceed to the ineffective assistance claim.

On February 11, 1987, Dennis entered into an Alford plea agreement, North Carolina v. Alford, 400 U.S. 25 (1970), in which he agreed to plead guilty to the first count of the indictment alleging drug trafficking. In exchange for Dennis's plea, the State dismissed the remaining two counts of the indictment and agreed to dismiss all charges in a separate matter. Pursuant to the written plea agreement, Dennis understood that the crime carried a presumptive sentence of seven years and a sentence range of five-and-a-quarter years to fourteen years. The agreement specified that under A.R.S. Secs. 13-801 to -804, a maximum fine could be imposed in the amount of $150,000 plus a 37 percent surcharge. The agreement further stated that Dennis would have to pay $100 as a mandatory assessment pursuant to A.R.S. Sec. 13-808. Finally, the agreement required Dennis to pay restitution for any economic losses suffered by victims.

On February 12, 1987, the state trial court conducted a hearing on Dennis's change of plea. The court explained the applicable range of sentences and noted that it could impose the fine plus the surcharge. In this context, the following exchange took place:

THE COURT: Do you further understand if your crime has resulted in any economic loss you will be required to pay restitution?

THE DEFENDANT: Yes sir.

At the hearing, after asking Dennis if he was pleading guilty because of the benefits he would receive from the plea agreement, the court found that Dennis knowingly, voluntarily, and intelligently entered his guilty plea and that the plea rested on a factual basis. The court then accepted and entered the plea.

On March 12, 1987, the court sentenced Dennis to fourteen years imprisonment and ordered him to pay $140 in restitution.

On December 22, 1987, Dennis appealed to the Arizona Court of Appeals, Division One, and raised only one issue: whether his plea could be intelligently entered since he was not advised how much restitution he would have to pay. The state appellate court issued a memorandum decision that affirmed in part and modified in part Dennis's conviction. The court found that the plea was voluntarily and intelligently entered and that the trial court's failure to give the exact amount of restitution was not error. The court also found, however, that the amount of restitution must be reduced to $30 because that was the amount of public funds advanced in buying contraband covered by the count of conviction.

On February 22, 1988, Dennis filed a petition for review with the Arizona Supreme Court. Relying on State v. Phillips, 152 Ariz. 533, 733 P.2d 1116 (1987), and State v. Lukens, 151 Ariz. 502, 729 P.2d 306 (1986), Dennis asserted that his rights to due process and equal protection were violated when the court of appeals affirmed his conviction without remanding for an evidentiary hearing to determine the voluntariness of his plea. On May 24, 1988, the Arizona Supreme Court denied the petition for review.

On September 28, 1987, Dennis filed a petition for post-conviction relief in Maricopa County Superior Court wherein he raised the issue of ineffective assistance of trial counsel. Counsel was appointed, and a supplemental petition was filed. The state pled preclusion under A.R.S. Sec. 13-4232(a) (3), asserting that the claims were knowingly, voluntarily, and intelligently waived by Dennis's failure to raise them at trial, on direct appeal, or in any previous collateral proceeding. The court disposed of Dennis's petition pursuant to Arizona Rule of Criminal Procedure 32.6(c) and found no material issue of fact or law. In issuing its ruling, the court made two specific findings: first, Dennis knowingly, voluntarily, and intelligently entered his plea; and second, Dennis presented nothing to demonstrate that any different sentence would have been imposed had a mitigation hearing been held.

Dennis again sought review by the Arizona Court of Appeals. In its memorandum decision, the court ruled that Dennis was precluded from raising the issue of ineffective assistance of counsel because he could have raised this claim on direct appeal. It also found Dennis's ineffective assistance claim to be unsubstantiated and contradicted by the record.

Dennis then filed a second petition for review in the Arizona Supreme Court, which was denied on January 11, 1989.

On February 21, 1989, appellant filed a petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 with the United States District Court. Dennis asserted two claims for relief: ineffective assistance of counsel and violations of his constitutional rights to due process and equal protection. The district court ruled that Dennis had failed to set forth an ineffective assistance of counsel claim and had failed to demonstrate a denial of his constitutional rights when the Arizona Court of Appeals did not remand his case to the trial court for a voluntariness hearing on the restitution issue. The district court then dismissed the writ.

On November 15, 1989, the state conceded that Dennis's ineffective assistance of counsel and constitutional claims were exhausted for purposes of Habeas Corpus relief.

PROCEDURAL BAR

Dennis argues that he received ineffective assistance of counsel, and his argument rests on three claims: 1) trial counsel lied to Dennis about the presentence report and coerced him into stating that he had read the report prior to sentencing; 2) Dennis did not see the presentence report until after sentencing and therefore had no chance to argue false information that might be contained therein; and 3) trial counsel stated that he could not take the matter to trial because of the case overload in the Public Defender's office, but that Dennis should not worry because he and the prosecutor were friends. Only these three ineffective assistance claims were alleged in the habeas petition before the district court. We do not review any argument unless it was raised and decided in the district court. Williard v. People of the State of California, 812 F.2d 461, 465 (9th Cir. 1987).

The state argues that all these claims were waived when Dennis failed to mention them in his direct appeal. We agree.

We look to the last explained state court judgment, see Ylst v. Nunnemaker, 59 U.S.L.W. 4808 (June 24, 1991), in which the Arizona Court of Appeals explicitly ruled that Dennis was precluded from raising his ineffective assistance claims because of his failure to conform to state procedural requirements. Under Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977), since Dennis's claims were waived under Arizona law, they are barred in federal habeas proceedings unless he can show either "cause and prejudice" or a "miscarriage of justice." Dennis offers nothing in the record that supports either cause and prejudice or a miscarriage of justice.

We have not reviewed the district court's rejection of the ineffective assistance claims on the merits, because we affirm on the ground that they are foreclosed by the procedural bar under Wainright and its progeny.

AFFIRMED.

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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