Serrato v. Carey

130 F. App'x 118

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 14, 2005
• Docket: No. 04-16141; D.C. No. CV-99-01612-LKK/JFM
• Status: Published

Opinion

MEMORANDUM

**

Michael Serrato petitions for writ of habeas corpus following a plea of nolo contendere to a charge of rape in violation of California Penal Code § 261(a)(2). We affirm the district court’s denial of habeas corpus.

Serrato’s arguments regarding the adequacy of the trial court’s inquiry during the three hearings conducted by the state trial court pursuant to People v. Marsden, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (1970), is not subject to review in a collateral attack to Serrato’s convictions. Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Serra-to’s argument that the trial court’s inadequate inquiry during his Marsden hearings and failure to substitute counsel led Serra-to to plead nolo contendere was not raised before the district court, and is therefore waived. Belgarde v. Montana, 123 F.3d 1210, 1216 (9th Cir.1997). Notwithstanding Serrato’s failure to raise this argument before the district court, it would still not provide a basis for relief, as Serrato fails to establish that the trial court’s inquiry during the hearings was inadequate, that he would not have pled nolo contendere but for his counsel’s ineffective assistance, or that he was otherwise prejudiced by the state trial court’s denial of his motions for substitute counsel. Strickland v. Washington, 466 U.S. 668, 688-89, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hill, 474 U.S. at 58-59.

AFFIRMED.

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.