875 F2d 318 Ensminger v. Borg

875 F.2d 318

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Dick Joe ENSMINGER, Petitioner-Appellant,
v.
Robert BORG, Warden and Attorney General, State of
California Respondents-Appellees.

No. 88-5792.

United States Court of Appeals, Ninth Circuit.

Submitted* May 1, 1989.
Decided May 18, 1989.

Before SNEED, REINHARDT and BRUNETTI, Circuit Judges.

1

MEMORANDUM**

2

Appellant Dick Joe Ensminger appeals from the district court's denial of his petition for a writ of habeas corpus. Ensminger had pleaded guilty in state court to 29 counts of robbery. In his petition for habeas relief, he contended that when he pleaded guilty he was not aware that under California law, he could be guilty of robbery only if he had the intent to deprive the owner of his property permanently. The district court concluded that it was bound by a state court finding in an earlier proceeding that Ensminger was fully aware of what transpired at the plea proceeding and denied the petition.

3

Our review of the records of the various state court proceedings shows that the particular issue raised by Ensminger in his federal habeas petition was never passed on by the state courts. In a motion to withdraw his guilty plea, Ensminger had contended that he was not aware of what transpired at his plea proceeding because he was under the effect of narcotics withdrawal medication. The state trial court held a hearing and denied the motion. This decision was subsequently affirmed by the state court of appeals. Neither decision explicitly or implicitly considered the question whether Ensminger knew of the intent requirement of a robbery charge.

4

Because the state courts never considered the specific issue raised by Ensminger in the habeas petition, the district court erred in concluding that the state court findings required that it deny Ensminger's petition.1 However, the Supreme Court has never held that every element of the alleged crime must be explained to the accused. Henderson v. Morgan, 426 U.S. 637, 647 n. 18 (1976). The cases in which the element of intent has been found to be so important that it must be explained to the defendant have in general been murder cases and thus have involved the confusing concept of malice aforethought. See, e.g., Henderson, 426 U.S. at 647 n. 18; Hayes v. Kincheloe, 784 F.2d 1434, 1438 (9th Cir.1986); cert. denied, 108 S.Ct. 198 (1987); Williams v. Raines, 783 F.2d 774, 775 (9th Cir.1986). The concept of intent that Ensminger claims he was not aware of, namely that he must have had the intent to deprive the owner of his property permanently, is not only not as confusing as malice aforethought, it is patently obvious. Because the petitioner's assertion goes beyond being merely improbable, but rather is incredible, the petition may be denied without an evidentiary hearing. Sober v. Crist, 644 F.2d 807, 810 (9th Cir.1981). Accordingly, we affirm the district court's denial of petitioner's request for habeas relief.

5

AFFIRMED.

SNEED, Circuit Judge, dissenting:

6

Granberry v. Greer, 107 S.Ct. 1671 (1987), provides authority to forego the requirement that state remedies be exhausted when the state has not raised this defense. The circumstances that justify suspending the exhaustion requirement are not delineated precisely, but rather are left to balancing of the interests of the state, the ease with which the unexhausted issue can be resolved by the federal courts, the effect of requiring exhaustion on both the duration of the petitioner's confinement and the federal interest in facilitating the resolution of habeas corpus litigation in federal courts.

7

Such balancing might lead to undermining the exhaustion requirement. To the extent not eliminated, its application is likely to be somewhat unpredictable. In addition, it is another step in fusing the state and federal appellate processes in criminal prosecutions commenced in the state courts. The states, of course, can forestall our suspension of the exhaustion requirement to a limited extent by taking special efforts to provide ample opportunities to raise all defenses in their courts. These efforts will fail, however, from time-to-time, and, as in this case, federal courts will be required to decide whether exhaustion should be required.

8

For these reasons, in this case I would exercise the discretion authorized by Granberry v. Greer by requesting the State of California to show cause why its failure to insist on an exhaustion of state remedies should not be considered a waiver of the exhaustion requirement. Only after the receipt of the State's response should this court consider whether it should require exhaustion or address the merits. I recognize there may be situations where to require such an order would be pointless; but I am by no means sure that this case is in that category. Here it appears more likely that the right hand of the State did not know what its left had done. In any event, a response by the State very likely would resolve rather quickly any doubts about the utility of exhaustion of remedies.

9

Therefore, I dissent from treating the exhaustion requirement as waived on the present record and presently would not address the merits of the petitioner's claim.

*

The panel unanimously agrees that this case is appropriate for submission without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Ensminger's failure to raise the intent issue in state court raises the question of whether he has failed to exhaust his state remedies. However, if the state fails to raise this defense, we have the discretion to consider that failure to constitute a waiver. Ames v. Endell, 856 F.2d 1441, 1444 (9th Cir.1988) (citing Granberry v. Greer, --- U.S. ----, 107 S.Ct. 1671, 1675 (1987)). Because the state in this case made a decision to litigate the petition on the merits both in the district court and on appeal, we hold that it has waived the exhaustion defense. Raines v. United States Parole Commission, 829 F.2d 840, 844-45 (9th Cir.1987)