No. 89-15279.

United States Court of Appeals, Ninth Circuit.

Before TANG and BEEZER, Circuit Judges, and ALBERT LEE STEPHENS, Jr., District Judge.***

MEMORANDUM**

Hollingsworth appeals the district court's dismissal without prejudice of his petition for habeas corpus under 28 U.S.C. Sec. 2254. We affirm.

Hollingsworth pleaded guilty and was convicted of four counts of child molestation under Cal.Pen.Code Sec. 288(a). After exhausting his state remedies, he filed this action pro se in federal court. In his petition, Hollingsworth alleged constitutional violations by state officials in arresting him, such as illegal search and seizure. He also alleged that the state did not have enough evidence to convict him absent his allegedly false confession. In addition, he alleged that his guilty plea was coerced.

The district court found that Hollingsworth's petition contained both proper and improper allegations which were too interwoven to grant or deny his petition on the merits. The court allowed Hollingsworth three opportunities, over a four-month period, to amend his petition to cure this defect. When he failed to amend his petition, the district court dismissed his action without prejudice under Fed.R.Civ.P. 41(b) for failure to prosecute his claim.1

We review a district court's order dismissing an action for lack of prosecution for abuse of discretion. Carey v. King, 856 F.2d 1439, 1440 (9th Cir.1988) (per curiam).

A conviction following a plea of guilty may be attacked only by showing that the plea was not voluntary and intelligent. Tollett v. Henderson, 411 U.S. 258, 267 (1973). Other constitutional violations, such as illegal search and seizure, that occurred before entry of a plea may not be used to attack the conviction. As the district court notes, the Supreme Court has instructed:

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea....

Id. at 267. Similarly, the fact that the state may have had a weak case against a defendant or obtained an illegal confession becomes irrelevant once a plea is entered. When "the defendant has his own reasons for pleading guilty wholly aside from the strength of the case against him ... the confession, even if coerced, is not a sufficient factor in the plea to justify relief." McMann v. Richardson, 397 U.S. 759, 767 (1970).

The record shows that at the time Hollingsworth entered his plea, he stated repeatedly that it was voluntary. He now must show that it was not. Id. at 766. We agree with the district court that Hollingsworth's petition does make this allegation among others, but it is intermingled with improper claims.

We conclude that dismissal of this action was not an abuse of discretion. Because dismissal was without prejudice, Hollingsworth is free to reformulate his petition to focus on the voluntary nature of his plea. He is instructed to omit claims of other constitutional violations occurring before entry of the plea.

AFFIRMED.