Smith v. Hall
Filing
35
Findings & Recommendation: Petitioner's Petition for Writ of Habeas Corpus 2254 1 should be denied, and judgment should enter dismissing this case with prejudice. Objections to the Findings and Recommendation are due by 1/26/2009. Response to Objections to the Findings and Recommendation are due by 2/9/2009. Signed on 1/12/09 by Magistrate Judge Paul Papak. (gm)
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FILED
12
I N THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON ROBERT DON SMITH, Petitioner,
) ) ) ) ) ) ) ) ) ) )
C i v i l No. 07-697-PK
v.
GUY HALL, S u p e r i n t e n d e n t , Two R i v e r s C o r r e c t i o n a l Institution, Respondent.
FINDINGS AND RECOMMENDATION
Craig E. Weinerman Assistant Federal Public Defender 1 5 1 W. 7 t h A v e n u e , S u i t e 5 1 0 Eugene, Oregon 97401 Attorney for Petitioner Hardy Myers Attorney General Jacqueline Sadker Assistant Attorney General Department of Justice 1 1 6 2 C o u r t S t r e e t NE Salem, Oregon 97301 Attorneys for Respondent 1 - FINDINGS AND RECOMMENDATION
PAPAK, M a g i s t r a t e J u d g e . P e t i t i o n e r R o b e r t Don S m i t h b r i n g s t h i s h a b e a s c o r p u s a c t i o n pursuant t o 28 U.S.C.
§
2254 and challenges convictions for robbery For the reasons set forth below,
in the f i r s t and second degree.
the P e t i t i o n for Writ of Habeas Corpus (#1) should be denied, and Judgment should be entered dismissing t h i s action with prejudice.
BACKGROUND
In Office
September
2003,
the
Douglas
County District Attorney's of Robbery in the First
charged Smith with
five
counts
Degree with a Firearm, six counts of Robbery in the Second Degree, six counts of Felon in Possession of a Firearm, and one count of Possession of a Controlled Substance. Respondent's Exhibit 102. 1
Following plea negotiations, Smith pled no contest to one count of Robbery in the F i r s t Degree and two counts of Robbery in the Second Degree. In exchange for Smith's plea, a l l the remaining Douglas
County charges were dismissed, pending charges in Coos County were dismissed, and the federal prosecutor promised t o recommend t h a t
the federal d i s t r i c t court run any sentence i t imposed under the Armed Career Criminal Act concurrently with Smith's s t a t e sentence. The sentencing court accepted Smith's plea and imposed a sentence
In addition to the Douglas County charges, Smith faced additional charges in Coos County and in federal court under the f e d e r a l A r m e d C a r e e r C r i m i n a l A c t (ACCA). P e t i t i o n e r ' s M e m o r a n d u m in Support (#29), pp. 2-4. 2 - FINDINGS AND RECOMMENDATION
in
accord
with
the
parties'
agreement
totaling
28
years.
Respondent's Exhibit 101, pp. 4-5. Smith did not directly appeal his sentence, but did f i l e for p o s t - c o n v i c t i o n r e l i e f ("PCR") i n s t a t e c o u r t . denied relief. No. CV04-1168. T h e PCR t r i a l c o u r t
Smith v. Hall, Umatilla County Circuit Court Case The Oregon Court of Appeals affirmed without
opinion and the Oregon Supreme Court denied review.
Smith v. Hall,
209 Or. App. 379, 148 P.3d 926 (2006), rev. denied, 342 Or. 645, 158 P.3d 508 (2007); Respondent's Exhibits 116-120. On May 1 1 , 2007, Smith filed this action. His ground for
r e l i e f can be summarized as follows: Ground One: P e t i t i o n e r was denied e f f e c t i v e a s s i s t a n c e of t r i a l counsel under the Sixth and Fourteenth Amendments t o the United States Constitution under the holdings of Strickland v. Washington, 466 U.S. 668 (1984) i n t h a t counsel f a i l e d t o exercise professional s k i l l and judgment in a reasonable, diligent and conscientious manner. Supporting Facts: Trial counsel failed to ensure petitioner's decision to waive his rights to a jury t r i a l and enter a g u i l t y plea was knowingly, v o l u n t a r i l y , and i n t e l l i g e n t l y made. P e t i t i o n e r was charged with multiple counts of robbery and felon in possession of a firearm arising from a crime spree in Douglas and Coos Counties. Petitioner also faced charges in f e d e r a l court for Felon in Possession of a Firearm as an Armed Career Criminal. Trial counsel negotiated a proposed plea agreement with state and federal prosecutors wherein a 200month federal sentence would run concurrently with a 336-month Douglas County (state) sentence. Counsel advised petitioner that i f he rejected the proposed plea agreement he would receive consecutive time on the federal charges and would "die i n p r i s o n . " This was erroneous advice because Federal sentencing guidelines require that the federal sentence for felon in possession of a firearm (if the 3 - FINDINGS AND RECOMMENDATION
same f i r e a r m a p p l i e d t o t h e s t a t e c h a r g e s ) r u n c o n c u r r e n t t o the undischarged term of imprisonment in the state case. See U . S . S . G . s e c t i o n 5 G 1 . 3 ( b ) , 4 ( b ) ( 3 ) (A) a n d U n i t e d S t a t e s v . Lynch, 378 F.3d 445 (5th Cir. 2004). But for counsel's erroneous advice, petitioner would not have e n t e r e d i n t o t h e no~contest p l e a a g r e e m e n t . Respondent asks the court to deny r e l i e f on the Petition
because Smith's claim was c o r r e c t l y denied on the merits i n a state-court decision that is entitled to deference.
DISCUSSION
An a p p l i c a t i o n f o r w r i t o f h a b e a s c o r p u s s h a l l n o t b e g r a n t e d unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary t o , or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United States,'! or (2) "based on an
unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A state court's bears by findings the clear of fact of are 28 U.S.C. presumed the
§
2254 (d). and of
correct
petitioner correctness
§
burden and
rebutting
presumption 28
convincing
evidence.
U.S.C.
2254 (e) (1) . A state court decision if the is "contrary court to applies a clearly rule that
established precedent
state
contradicts the governing law s e t forth in [the Supreme Court's] cases" or !'if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court
4 - FINDINGS AND RECOMMENDATION
and
nevertheless
arrives
at
a
result
different 362,
from
[tha t] (2000) .
precedent."
Williams v.
Taylor,
529 U.S.
405-06
Under the "unreasonable application" clause, a federal habeas court may g r a n t r e l i e f " i f t h e s t a t e c o u r t i d e n t i f i e s t h e c o r r e c t l e g a l principle from [the Supreme Court's] decisions, but unreasonably applies Id. that principle to the facts of the prisoner's case."
at 413. court
The "unreasonable application" clause requires the decision to be more than incorrect or erroneous.
state
Id. at 410.
The s t a t e c o u r t ' s application of c l e a r l y established Id. at 409.
law must be objectively unreasonable.
The Supreme Court has established a two-part t e s t to determine whether counsel. a petitioner First, the has received ineffective show that assistance his of
petitioner
must
lawyer's
performance f e l l below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-687 (1984) difficulties in evaluating counsel's performance, Due t o t h e courts must
indulge a strong presumption t h a t the conduct f a l l s wi thin the "wide range of reasonable professional assistance." Id a t 689.
Second, the p e t i t i o n e r must show t h a t h i s lawyer's performance prejudiced the defense. whether the defendant The appropriate t e s t for prejudice i s can show "that there is a reasonable the
probability that,
but for counsel's unprofessional errors,
result of the proceeding would have been different."
Id at 694.
5 - FINDINGS AND RECOMMENDATION
A reasonable probability i s one which i s sufficient to undermine confidence in the outcome of the t r i a l . Id at 696.
In Hill v. Lockhart, the Supreme Court adapted the two-part Strickland standard to g u i l t y pleas based on ineffective assistance of counsel, holding that a defendant seeking to challenge the
validity of his guilty plea on the ground of ineffective assistance of counsel must show t h a t (1) his "counsel's representation fell
below an objective standard of reasonableness," and (2) "there i s a reasonable probability that, but for [his] counsel's errors, he would not have pleaded g u i l t y and would have i n s i s t e d on going to trial." 474 U.S. 52, 57-59 (1985).
A s n o t e d i n t h e f o l l o w i n g e x c h a n g e b e t w e e n S m i t h ' s PCR t r i a l c o u n s e l a n d t h e j u d g e , t h e PCR c o u r t m a d e f i n d i n g s o n t h e r e c o r d a t S m i t h ' s PCR t r i a l : MR. MORDINI: JUDGE JACK: MR. MORDINI: I j u s t want t o - - j u s t , i f I may, j u s t c l a r i f y something. Okay. Well, the Court is right, the issue is whether there was erroneous advice given. But I think i t ' s more than t h a t . I t ' s whether erroneous advice was given and but for t h a t erroneous advice there was ineffective assistance of counsel and the plea was, you know, i n t e l l i g e n t l y made. And I j u s t would l i k e t o say t h a t - - I think I ' v e a l r e a d y m a d e my r e c o r d h e r e , b u t o u r position again, without going into a lot of detail, is that the federal sentencing guidelines required that the federal sentence for a felon in possession of that firearm run 6 - FINDINGS AND RECOMMENDATION
concurrent to the undischarged imprisonment in the state case.
term
of
And, again, I ' l l simply r e f e r the Court to the United States Sentencing Guidelines, Chapter 5 G 1 . 3 B a n d c h a p t e r 4B 1 . 4 s m a l l B 3 A . And t h a t ' s a l l I have to say. JUDGE JACK: How c o u l d y o u p o s s i b l y b e l i e v e t h a t I d i d n ' t u n d e r s t a n d t h a t ? Do y o u t h i n k I ' v e - - am I o n TV? Am I b l a n k i n g o u t o n y o u o r s o m e t h i n g ? No. Again, I'm so right the issues in the case have - - I think, the best evidence i s the fact t h a t i t ' s U. S . D i s t r i c t C o u r t , D i s t r i c t o f Oregon, and t h a t ' s explained in the affidavit by Mr. Papagni. He c l e a r l y s e t i t f o r t h i n h i s l e t t e r o f o f f e r insofar as a plea negotiation were concerned. He a l s o s e t f o r t h i n h i s a f f i d a v i t t h a t i t ' s been the practice in the District Court for the state of Oregon, Federal District Court for the State of Oregon to have the option for a judge under these circumstances to either run a concurrent or consecutive sentence under the charges that were brought forth that were pending in this case. I find nothing t h a t Mr. Bernier * * * did inappropriate or improper. I find that he acted in the best interest of his client. That he attempted in a l l efforts in a l l aspects to gain for his client the best sentence t h a t was a v a i l a b l e t o him under the circumstances for the jurisdiction collectively. I find that he advised his client correctly insofar as the circumstances were concerned. And t h e t h r e a t s t h a t w e r e h a n g i n g o v e r h i s head, I find he was able, capable, competent, gave good advice, and was e f f e c t i v e insofar as handling this matter.
MR. MORDINI: JUDGE JACK:
7 - FINDINGS AND RECOMMENDATION
I find the plea t h a t was given by Mr. Smith was i n t e l l i g e n t , knowing, and voluntary based upon the information t h a t was secured to him not only through his attorney but also through t h e U . S . a t t o r n e y o r d e p u t y U . S . a t t o r n e y who was involved in the s i t u a t i o n . I find no b a s i s t o s e t a s i d e o r i n any way adjust the sentence t h a t was imposed. I t was a stipulated sentence. Everybody was in agreement with what would happen inevitably in (inaudible) . MS. SAAD: JUDGE JACK: No c o n t e s t p l e a d i n g . No contest pleading. circumstances I find no conviction relief. But basis under the for post
Respondent's Exhibit 114, pp. 41-43. Smith's
tri~l
counsel submitted an affidavit to the court in (1) t h a t he believed the
t h e PCR p r o c e e d i n g s a t t e s t i n g a s f o l l o w s :
federal courts could impose a consecutive sentence to Smith's state sentence and that he forcefully and frequently advised Smith that i f he did not resolve his s t a t e case by negotiation, he believed Smith would "die i n prison"; (2) t h a t the b a s i s for h i s advice was
a CLE h e a t t e n d e d o n t h e A r m e d C a r e e r C r i m i n a l A c t ; a n d ( 3 ) t h a t "having the f e d e r a l time be concurrent with h i s s t a t e time was a fundamental bargain." In Smith's prerequisite to Mr. Smith's accepting the plea
Respondent's Exhibit 107, pp. 1-2. addition, counsel United as and referenced above the PCR trial in the exchange between Papagni, the the
judge, who
Frank
Assistant
States
Attorney
handled
federal In
p r o s e c u t i o n o f S m i t h s u b m i t t e d a n a f f i d a v i t t o t h e PCR c o u r t . 8 - FINDINGS AND RECOMMENDATION
that a f f i d a v i t ,
he a t t e s t e d t h a t Smith's a s s e r t i o n t h a t he was
never a t r i s k of receiving a consecutive federal sentence was f a l s e because under the relevant federal law ultimate discretion as to the imposition of consecutive or concurrent sentences rested with the district judge. Respondent's Exhibit 110, p. 1. Moreover, Mr.
Papagni attested that during plea negotiations with Smith's t r i a l attorney, he expressed t h a t i t was his i n t e n t t o make Smith die in prison i f he did not accept the plea agreement and that this result would have been j u s t i f i e d given Smith's criminal history which included 6 prior felonies all qualifying as violent crimes.
2.
Id. at
In Smith's supporting memorandum, he continues to argue t h a t the then-mandatory federal federal sentence sentencing under guidelines
§
required
a
concurrent
U.S.S.G.
5G1.3{b) (2).
Memorandum i n Support (#29), pp. 4-5, 8. that
Smith concedes, however,
At the time Mr. Smith pled n o - c o n t e s t , 18 U.S.C. § 3584 granted federal judges discretion to run a sentence consecutively or concurrently. United States v. Burns, 894 F.2d 334, 337 (9th Cir. 1990) ("[A]lthough Guideline § 5Gl.3 appears to require concurrent sentences i f the same t r a n s a c t i o n i s involved, i t i s subservient to 18 U. S . C . § 3 5 8 4 ( a ) , w h i c h m a k e s t h e d e c i s i o n w h e t h e r t o impose a consecutive or concurrent sentence a matter of the trial judge's discretion.) Memorandum i n Support (#29), pp. 12-13. Nevertheless, Smith argues
t h a t "while counsel made a lucky guess t h a t the d i s t r i c t court could have imposed a consecutive sentence had i t gone through an elaborate departure analysis," there was no b a s i s for an upward
9 - FINDINGS AND RECOMMENDATION
departure a n d c o u n s e l w a s i n c o r r e c t i n a d v i s i n g S m i t h t h a t h e w o u l d receive a consecutive sentence i f he did not accept the State's plea offer. The Id. a t 14 & 16. is unpersuaded. Regardless of whether trial
court
counsel's belief that the d i s t r i c t court could impose a consecutive sentence was based on luck, h i s a t t e n d a n c e a t a CLE, a n d / o r t h e
w r i t t e n r e p r e s e n t a t i o n s of the federal prosecutor, such b e l i e f was accurate. Moreover, i n a s s e r t i n g t h a t there was no basis for an
upward departure which would j u s t i f y imposition of a consecutive sentence, Smith inexplicably fails to address Mr. Papagni's
assertion that Smith's criminal history which included 6 prior felonies a l l qualifying as violent crimes under federal law coupled with the nature of the crime spree and Smith's use of a firearm, warranted imposition of consecutive time.
110, pp. 1-2.
Respondent's Exhibit
Accordingly, t r i a l counsel's representation of Smith did not f a l l below an objective standard of reasonableness when he advised Smith that the d i s t r i c t court could impose a consecutive federal sentence and that he believed he would "die in prison" not accept the State's plea offer. For these reasons, Smith's ineffective assistance claim fails under Strickland's (and Hill's) deficient performance prong. PCR t r i a l court's decision concluding that p e t i t i o n e r was The not i f he did
denied the right to effective assistance of counsel is neither
1 0 - FINDINGS AND RECOMMENDATION
contrary
to,
nor
an
unreasonable
application
of,
clearly
established federal law.
RECOMMENDATION
For the reasons identified above, Habeas Corpus (#1) s h o u l d b e DENIED,
the Petition for Writ of and judgment should enter
DISMISSING t h i s c a s e w i t h p r e j u d i c e .
SCHEDULING ORDER
Objections to these Findings and Recommendation, i f any, are due January 26, 2009. If no objections are filed, then the
Findings and Recommendation will be referred to a United States D i s t r i c t Judge for review and go under advisement on that date. If
objections are filed, any response to the objections will be due fourteen days after the date the objections are filed and review of the Findings and Recommendation will go under advisement on t h a t date.
NOTICE
A party's failure to timely f i l e objections to any of these findings will be considered a waiver of that party's right to
de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a d i s t r i c t judge. These Findings and Recommendation are not immediately
appealable to the Ninth Circuit Court of Appeals.
Any n o t i c e o f
1 1 - FINDINGS AND RECOMMENDATION
appeal p u r s u a n t t o R u l e 4 ( a ) ( 1 ) o f t h e F e d e r a l R u l e s o f A p p e l l a t e Procedure should not be filed until entry of judgment. DATED t h i s 1 2 t h d a y o f J a n ~ 2 0 0 9 .
Paul Papak United States Magistrate Judge
1 2 - FINDINGS AND RECOMMENDATION
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