Bargas v. Burns

179 F.3d 1207, 99 Daily Journal DAR 5969, 99 Cal. Daily Op. Serv. 4648, 1999 U.S. App. LEXIS 12100, 1999 WL 382711
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 14, 1999
DocketNo. 98-15450
StatusPublished
Cited by81 cases

This text of 179 F.3d 1207 (Bargas v. Burns) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bargas v. Burns, 179 F.3d 1207, 99 Daily Journal DAR 5969, 99 Cal. Daily Op. Serv. 4648, 1999 U.S. App. LEXIS 12100, 1999 WL 382711 (9th Cir. 1999).

Opinions

Opinion by Judge SNEED; Dissent by Judge TASHIMA.

SNEED, Circuit Judge:

Willie Bargas (“petitioner”) appeals from the decision of the United States District Court for the District of Nevada, the Honorable David Warner Hagen, Presiding, which denied his petition for a writ of habeas corpus. Petitioner asserts two claims in this petition: (1) that his trial counsel was ineffective; and (2) that his guilty plea was not knowing and voluntary. The district court held that petitioner procedurally defaulted his ineffective assistance of counsel claim and denied on the merits his claim that his guilty plea was not knowing and voluntary.

We have jurisdiction pursuant to 28 U.S.C. § 2253 and affirm the decision of the district court in its entirety.

I.

Petitioner pleaded guilty to sexual assault in March of 1983. At his arraignment, the trial court judge read the sexual assault statute to petitioner, the attorney for the state read the elements of the offense in open court and petitioner acknowledged that his counsel advised him of the nature of the charge against him. The attorney for the state, however, neglected to mention the mens rea element of the statute. During the plea hearing, the trial court read the amended information to petitioner, informed him of the minimum and maximum penalties under the statute and received assurances from petitioner that he indeed understood the nature of his guilty plea.

Petitioner has filed multiple-two state and two federal-challenges to his guilty plea. In December of 1983, petitioner filed his first state habeas petition, alleging ineffective assistance of counsel and claiming that his plea was not knowing and voluntary. The court denied his request [1210]*1210for relief; it did not in any detail discuss the merits of petitioner’s ineffective assistance of counsel claim in its opinion. Petitioner appealed to the Nevada Supreme Court, arguing only that his plea was not knowing and voluntary. He failed to appeal the state court’s decision to deny his habeas petition with respect to his claim of ineffective assistance of counsel. The Nevada Supreme Court rejected petitioner’s plea argument.

’Petitioner then filed his first federal ha-beas petition, alleging ineffective assistance of counsel and arguing that his plea was defective. The district court dismissed the petition, concluding that petitioner failed to exhaust his state court remedies for ineffective assistance of counsel.

Petitioner, with the assistance of counsel, filed his third habeas petition, this time in state court, again alleging ineffective assistance of counsel and claiming that his plea was not knowing and voluntary. The trial court held that petitioner proee-durally defaulted on his ineffective assistance of counsel claim because he failed to raise the issue on appeal from the denial of his first petition for writ of habeas corpus. The portion of that order relevant to this appeal stated:

The court ... finds that:
4. Petitioner’s claim of ineffective assistance of trial counsel presented herein was not raised on appeal in the above mentioned case....
5. Trial counsel in petitioner’s case in the trial court was not ineffective and his advice to the petitioner to enter his plea of guilty was the result of a tactical decision made in light of petitioner’s prior admission of guilt in committing the crime charged.
The court, therefore concludes that:
1. Petitioner has committed procedural default in failing to raise in his previous appeal the claim and issue of ineffective assistance of counsel. Dromiack v. Warden, 97 Nev. 348, 630 P.2d 751 (1981).
2. Petitioner has failed to show cause and prejudice for the procedural default. Dromiack v. Warden, 97 Nev. 348, 630 P.2d 751 (1981).

Petitioner next filed a petition for a writ of habeas corpus in federal court, once again alleging ineffective assistance of counsel and challenging the constitutionality of his plea agreement. The district court refused to reach the merits of the ineffective assistance of counsel claim, finding that issue was resolved on an independent and adequate state ground (i.e., the procedural default). The court also denied petitioner’s guilty plea argument on its merits.

Petitioner now appeals from the district court’s dismissal of his petition for a writ of habeas corpus.

II.

Petitioner first argues that the state court erred in concluding that he procedurally defaulted his ineffective assistance of counsel claim. To repeat, in December of 1983, petitioner filed his first state habe-as petition, alleging ineffective assistance of counsel and claiming that his plea was not knowing and voluntary. The court denied his request for relief and petitioner appealed that denial to the Nevada Supreme Court, arguing only that his plea was not knowing and voluntary. He failed to appeal the state court’s decision denying his claim of ineffective assistance of counsel. Petitioner then filed a second state habeas petition alleging, inter alia, ineffective assistance of counsel. The court refused to reach the merits of that claim, finding that petitioner procedurally defaulted by failing to appeal the first denial of relief.

Petitioner asserts that the Nevada state court erred in concluding that he procedurally defaulted his ineffective assistance of counsel claim. Because we conclude that (A) firmly established and regularly [1211]*1211followed Nevada law requires a petitioner to appeal from the denial of post-conviction relief or risk procedural default; (B) the state court in this case clearly rested its decision on independent state ground; and (C) petitioner failed to demonstrate cause and prejudice for his failure to follow Nevada procedural law, we affirm the decision of the district court dismissing petitioner’s ineffective assistance of counsel claim on the grounds that petitioner procedurally defaulted this claim.

A. Firmly Established and Regularly Followed Nevada Law.

We must decide whether the Nevada state court in this case followed “firmly established and regularly followed” Nevada law when it held that petitioner was procedurally barred from raising his ineffective assistance of counsel claim. The court barred petitioner from proceeding with his ineffective assistance of counsel claim because he failed to appeal the denial of that claim in his first state habeas petition. We agree and conclude that, under “firmly established and regularly followed” Nevada law, a defendant must raise a claim on appeal from a denial of a petition for a writ of habeas corpus; if he fails to do so, Nevada law procedurally bars him from raising that claim in a subsequent petition.

“When a state prisoner has defaulted a claim by violating a state procedural rule which would constitute adequate and independent grounds to bar direct review in the U.S. Supreme Court, he may not raise the claim in federal habeas, absent a showing of cause and prejudice.” Wood v. Hall,

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Bluebook (online)
179 F.3d 1207, 99 Daily Journal DAR 5969, 99 Cal. Daily Op. Serv. 4648, 1999 U.S. App. LEXIS 12100, 1999 WL 382711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bargas-v-burns-ca9-1999.