857 F. 2d 1477 - Frost v. United States Parole Commission

MEMORANDUM**

Appellant Peter Wayne Frost, a federal prisoner proceeding in forma pauperis, appeals the dismissal of his 28 U.S.C. Sec. 2241 petition as frivolous pursuant to 28 U.S.C. Sec. 1915(d). We affirm.

Frost was informed by prison officials that he was to be transferred out of state to a lower security institution. He threatened to escape if the transfer occurred. He was transferred and he carried out his threat. He was subsequently recaptured, convicted of escape, and sentenced to two years imprisonment. Additionally, the respondent parole commission increased the parole conditions on his original sentence. Frost then petitioned the district court for a writ of habeas corpus, claiming his escape was caused by the prison officials disregard of his threat and that his trial counsel was ineffective because he failed to defend on that ground. The district court granted Frost leave to proceed in forma pauperis and dismissed the petition sua sponte as frivolous under Section 1915(d).

We affirm. Frost's warning cannot insulate him from the consequences of his crime. The argument is plainly frivolous within the meaning of Section 1915(d) as it has no basis in law. See Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir.1987). The failure to raise a frivolous defense cannot constitute ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Since the frivolous nature of his claim is a non-curable defect in his pleading, see Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987), the petition was properly dismissed without leave to amend.

AFFIRMED.