Shane Mark Beals, Petitioner-appellant, v. Miles Long, Warden, of All Conservation Camps; Frankie Suedel Papa; John Slansky; Mark Andrews, Lt.,respondents-appellees, 129 F.3d 124 (9th Cir. 1997)

MEMORANDUM^* 

Beals asserts that his guilty plea was involuntary as a matter of law because the trial judge participated in discussions leading to the plea agreement. However, as Beals himself acknowledges, never before has this been held to be a constitutional violation. Since this would be a new rule, we are barred by Teague v. Lane, 489 U.S. 288, 310 (1989), from applying it on collateral review. See also Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (court can raise Teague question sua sponte).

Beals next claims ineffective assistance of counsel, arguing that he only pled guilty because his counsel allegedly gave him erroneous advice about possible sentences. This claim may be recognizable on habeas, Hill v. Lockhart, 474 U.S. 52, 60 (1985), only if counsel actually gave erroneous advice. However, during a state evidentiary hearing, Beals' counsel testified that he told Beals the full extent of possible sentences both if he pled guilty and if he went to trial. The state court found this testimony credible. Because this finding is fairly supported in the record, it is entitled to a presumption of correctness, see Tomlin v. Myers, 30 F.3d 1235, 1242 (9th Cir. 1994), which Beals has failed to rebut. See 28 U.S.C. § 2254(d) (1994).

Finally, Beals argues that his resentencing violated Double Jeopardy. The Supreme Court has held that Double Jeopardy does not limit the power of the state to retry or resentence a defendant who successfully challenged his first conviction or sentence, unless the judge or prosecutor acted in bad faith to harass the accused. See United States v. Dinitz, 424 U.S. 600, 611 (1976). Beals argues that his original sentencing judge engaged in deliberate misconduct by participating in a plea agreement discussion. This assertion is untenable since Beals' own counsel specifically requested the judge's participation.

AFFIRMED.