William F. Hess v. Manfred Maass, Superintendent

70 F.3d 1278 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. William F. HESS, Petitioner-Appellant, v. Manfred MAASS, Superintendent, Respondent-Appellee. No. 94-35359. United States Court of Appeals, Ninth Circuit. Submitted: Oct. 18, 1995.* Decided: Nov. 15, 1995. Before: CHOY, SKOPIL, and FERGUSON, Circuit Judges. [1] MEMORANDUM** [2] Willie Hess, an Oregon state prisoner, appeals the district court's denial of his 28 U.S.C. Sec. 2254 habeas petition challenging his state conviction for sexual abuse. Hess claims that his no contest plea was unknowing and involuntary because he not informed of the possibility of a minimum sentence. The state post-conviction court, however, found that Hess "was advised of the possibility of a minimum sentence before he entered his plea." That finding is entitled to a presumption of correctness, 28 U.S.C. Sec. 2254(d), which Hess has failed to rebut. See Wells v. Maass, 28 F.3d 1005, 1011 (9th Cir.1994). The fact that Hess was informed by his counsel rather than by the state court judge is immaterial. Even if the state court was obligated under state law to inform Hess of the possibility of a minimum sentence, there is no indication in the record before us that Hess "was prejudiced or his rights were affected by the omission by the state trial judge." Blair v. McCarthy, 896 F.2d 436, 436 (9th Cir.1990), amending 881 F.2d 609 (9th Cir.1989) (internal quotation omitted). Rather, the record here clearly supports the district court's conclusion that Hess' plea was neither unknowing nor involuntary. [3] AFFIRMED. Footnotes [-s] * The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4 [-s-s] ** 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