Opinion
No. 71-1773.
February 9, 1972.
Howard R. Macon, in pro. per.
Evelle J. Younger, Cal. Atty. Gen., John T. Murphy, Michael Buzzell, Deputy Attys. Gen., San Francisco, Cal., for respondents-appellees.
Appeal from the United States District Court for the Northern District of California.
Before HAMLEY, DUNIWAY, and HUFSTEDLER, Circuit Judges.
Macon appeals from an order dismissing his habeas corpus petition without an evidentiary hearing.
Macon, a State of California prisoner, was charged with the possession for sale of narcotics in violation of section 11500.5 of the California Health and Safety Code. On September 22, 1967, he entered a plea of guilty to section 11500 of the same Code, a lesser included offense. Thereafter, the state court suspended sentence and ordered him civilly committed to the California Rehabilitation Center for narcotics addicts pursuant to section 3051 of the California Welfare and Institutions Code. In April 1968, the Superintendent of the Rehabilitation Center reported that Macon had been rejected by the Center for his "excessive criminality," based on events antedating his plea. Macon's motion to withdraw his plea was denied and on November 8, 1968, he received a mandatory five-to-twenty-year sentence.
Macon made four claims in the district court, three of which have no merit. The fourth claim is that his guilty plea had been induced by the district attorney's promise that he would be committed to the Rehabilitation Center. The district court denied a hearing on this issue in apparent reliance on a colloquy between Macon and the state court which it accepted as establishing the lack of such a promise. During the colloquy, the trial judge took great care to inform petitioner that "[the Court] cannot guarantee that . . . if they don't get you in there [Rehabilitation Center] then it looks as you go to State Prison from there" and "if they don't take you to the hospital you understand that you . . . won't be permitted then to withdraw this plea and start all over again." Macon said he understood. On the other hand, Macon was not then told that if he were once admitted to the Center, he might be rejected for reasons wholly unrelated to his addiction.
If the district attorney did induce the plea by a promise that was not kept, Macon would be entitled to relief from his plea. ( See Santobello v. New York (1971) 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427.) We cannot say that the colloquy completely dispels Macon's claim: (1) that the district attorney made the promise, (2) that the promise was not kept, and (3) that Macon was induced to enter his plea in reliance on the promise. He is entitled to an evidentiary hearing limited to his fourth claim. ( See, e. g., United States v. Tweedy (9th Cir. 1969) 419 F.2d 192; Anthony v. Fitzharris (9th Cir. 1968) 389 F.2d 657.)
His remaining contentions were presented neither to the state court nor to the district court. We therefore do not consider them.
The cause is remanded to the district court for further proceedings consistent with the views herein expressed.