United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane, United States District Judge
with a co-defendant, petitioner was indicted by a grand jury
in Multnomah County for multiple counts of robbery, assault,
and attempted murder, all stemming from two separate criminal
episodes that occurred on November 25, 2004. Although the
juvenile record and the arrest history of the petitioner were
readily obtainable, petitioner's trial counsel admitted
that he failed to investigate or inquire into these facts.
Deficient of this knowledge, trial counsel advised petitioner
that "his worst case sentencing scenario would likely be
around 17 V2 years." Resp't Ex. 119 at 3. On another
occasion counsel told petitioner that "a sentence of. .
. over 20 years is really unrealistic. Don't even put
that in your mind." Resp't Ex. 127 at 75. Based on
this advice, petitioner refused to accept an initial plea
offer of 200 months and later refused to negotiate a
settlement that would have resulted in a prison range of 17
V2 to 20 years. Following trial, a presentence report was
ordered that reflected a much more serious history of
criminal conduct than the minimal criminal background known
to trial counsel. Petitioner was sentenced to 396 months in
brings this habeas corpus proceeding under 28 U.S.C. §
2254, challenging his convictions and sentence for robbery,
assault, and attempted murder. Because of his failure to
adequately investigate petitioner's criminal history,
trial counsel provided ineffective assistance by advising his
client that a trial outcome could be no worse than a
negotiated settlement. This caused prejudice to the
petitioner. Because the PCR court failed recognize the
constitutional significance of trial counsel's failure to
reasonably investigate petitioner's criminal history
prior to advising petitioner about potential outcomes, the
decision of the PCR court was an unreasonable application of
clearly established federal law. The petition is GRANTED.
March 1, 2005, petitioner and a co-defendant were charged
with four counts of Robbery in the First Degree, two counts
of Robbery in the Second Degree, and one count each of
Attempted Murder, Kidnapping in the Second Degree, and
Assault in the First Degree. Resp't Ex. 102, at 1-3. The
charges arose from two separate robberies that occurred on
November 25, 2004, one of which involved a shooting and
26, 2005, petitioner's trial counsel was appointed and
took over petitioner's defense. Resp't Ex. 119 at 1.
September 19, 2005, trial counsel sent a letter advising
petitioner that he did "not have a strong case for
trial" and the potential maximum sentence could be 450
months if petitioner was convicted on all counts and given
consecutive sentences. Counsel's letter further stated
"such a sentence is unlikely" and advised
petitioner that counsel believed a plea agreement of 11-12
years was possible but for petitioner's request
"that no offer be made." Resp't Ex. 126 at 1-3.
September 21, 2005, the State extended a plea offer of 200
months, slightly longer than 16 V2 years. Resp't Ex. 128
at 2. Petitioner rejected the offer after his counsel advised
that the offer was "way too high" and they should
explore plea negotiations during a judicial settlement
conference. Resp't Ex. 129 at 22-23.
September 26, 2005, prior to hearing the scheduled arguments
on defense motions, the trial court offered the parties an
opportunity to engage in settlement discussions. Transcript
of Proceedings (Tr.) at 17-18 (ECF No. 29). 
Petitioner's counsel informed the court that the State
had already made an offer and petitioner had rejected it. The
trial court ultimately granted petitioner's motion to
sever his case from that of his co-defendant and denied
petitioner's motions to suppress. Tr. at 68-69, 188.
to counsel, petitioner began to express an interest in plea
negotiations after the motions hearing, culminating in
settlement negotiations the day of the trial. Resp't Ex.
127 at 10-12, 24-25. During the negotiations, the prosecutor
indicated that the State would entertain offers in the 17 to
19-year range and invited petitioner to make an offer of 17
V2 years. Id. at 12-13, 79. Counsel again advised
petitioner that he would not receive a sentence much longer
than the State's suggested offer if he was convicted at
trial. Id. at 14 ("And my advice was that the
trial is - at the conclusion of trial, if we lost, everything
would not be dramatically or very much different than what
had been offered"), 64-65. Based on counsel's
advice, petitioner did not extend an offer and proceeded with
trial. Id. at 15 ("But based on my advice in
our discussion, we didn't accept an offer.").
trial, four victims identified petitioner as the person who
had robbed them; petitioner was also identified as the person
who shot one victim. Tr. at 287, 337, 386, 426-427. In his
defense, petitioner testified that he was at the scene of the
first robbery but ran away after hearing gunshots. Tr. at
627-633. He also testified that he spent the evening with
family and friends and was not present at the second robbery.
Tr. at 641-46. The jury returned guilty verdicts on all eight
counts presented at trial. Tr. at 778-80, 783-84.
before the sentencing date, counsel received the pre-sentence
investigation report, which recommended a sentence of 475
months based in large part on petitioner's uncharged
criminal conduct that was unknown to trial counsel. Tr. at
819; Resp't Ex. 127 at 71. Counsel requested a
postponement to investigate and obtain mitigation evidence.
Tr. at 802-03.
sentencing, the trial court sentenced petitioner to a total
of 396 months of imprisonment. For convictions related to the
first criminal episode, the court imposed consecutive
90-month sentences for each robbery, a concurrent 90-month
sentence for the attempted murder, and a partially
consecutive 90-month sentence for the assault (36 months
running consecutive) for a total of 216 months. Resp't
Ex. 101. For convictions related to the second criminal
episode, the court imposed consecutive 90-month terms for
each robbery, merging the lesser included counts for a total
of 180 months. Id.
exhaustion of his remedies on direct appeal, petitioner filed
a petition for postconviction relief (PCR) alleging, in
addition to those raised in this Court, several ineffective
assistance of counsel claims. Resp't Ex. 115-16;
Pet'r Brief, Ex. A (ECF No. 43). The PCR court denied
petitioner's claims, finding no deficient performance by
counsel and no prejudice. Resp't Ex. 130. The Oregon
Court of Appeals affirmed without opinion and the Oregon
Supreme Court denied review. Resp't Exs. 134-35.
November 23, 2015, petitioner filed the instant Petition for
Writ of Habeas Corpus.
asserts five claims of ineffective assistance of trial
counsel, identified as Grounds One(a) through One(e). Pet. at
3-4 (ECF No. 2); Resp't Response at 2 (ECF No. 30).
Petitioner presents argument in support of only Ground One(e)
and relies on the arguments presented during his PCR appeal
to support his remaining grounds. See generally
Pet'r Brief; see also Pet'r Sur-Reply at 17
(ECF No. 60). After review of the record, I find that
petitioner has not met his burden of establishing entitlement
to habeas relief on Grounds One(a)-(d). See Mayes v.
Premo, 766 F.3d 949, 957 (9th Cir. 2014) (a petitioner
bears the burden of proving his claims).
Ground One(e), petitioner alleges that counsel rendered
ineffective assistance when advising petitioner about the
consequences of rejecting the State's plea offers.
Petitioner asserts that counsel failed to obtain critical
information about his criminal history and erroneously told
petitioner that even if convicted at trial, he would not
receive a sentence that was significantly longer than a
negotiated sentence. Petitioner maintains that counsel's
deficient advice caused prejudice to him, because petitioner
rejected the State's offer and received a much harsher
sentence after trial. Strickland v. Washington, 466
U.S. 668 (1984) (ineffective assistance of counsel requires
deficient performance by counsel and resulting prejudice).
The PCR court rejected this claim, finding that counsel
provided petitioner with all of the information he needed to
consider a plea offer, and that petitioner would not have
accepted a plea in any event. Resp't Ex. 130 at 3. Based
on these findings, the PCR court concluded, "No
inadequacy in any respect pled, no prejudice."
Id. at 4. Respondents maintain that the PCR
court's decision is reasonable and entitled to deference.
federal court may not grant a habeas petition regarding any
claim "adjudicated on the merits" in state court,
unless the state court ruling "was contrary to, or
involved an unreasonable application of, clearly established
Federal law." 28 U.S.C. § 2254(d)(1). A state court
decision is "contrary to" established federal law
if it fails to apply the correct Supreme Court authority, or
if it reaches a different result in a case with facts
"materially indistinguishable" from relevant
Supreme Court precedent. Brown v. Payton, 544 U.S.
133, 141 (2005); Williams v. Taylor, 529 U.S. 362,
405-06 (2000). A state court decision is an
"unreasonable application" of clearly established
federal law if the state court identifies the correct legal
principle but applies it in an "objectively
unreasonable" manner. Woodford v. Visciotti,
537 U.S. 19, 24-25 (2002) (per curiam); Williams,
529 U.S. at 407-08, 413; see also Early v. Packer,
537 U.S. 3, 11 (2002) (per curiam) (state court decisions
that are not "contrary to" clearly established
Supreme Court law may be set aside only "if they are not
merely erroneous, but 'an unreasonable application'
of clearly established federal law, or are based on 'an
unreasonable determination of the facts'").
well-established Supreme Court precedent, the right to the
effective assistance of counsel extends to "the
plea-bargaining process, " including the decision
whether to accept or reject a plea offer. See Lafler v.
Cooper, 566 U.S. 156, 162 (2012) ("During plea
negotiations defendants are entitled to the 'effective
assistance of competent counsel.'"); Missouri v.
Frye, 566 U.S. 134, 145 (2012); Hill v.
Lockhart, 474 U.S. 52, 58-59 (1985). To establish
ineffective assistance, a petitioner must show that 1)
"counsel's performance was deficient, " and 2)
counsel's "deficient performance prejudiced the
defense." Strickland, 466 U.S. at 687.
"Unless a defendant makes both showings, it cannot be
said that the conviction...resulted from a breakdown in the
adversary process that renders the result unreliable."
deficient performance, a petitioner "must show that
counsel's representations fell below an objective
standard of reasonableness." Id. at 688. The
question is not whether counsel's advice was correct, but
"whether that advice was within the range of competence
demanded of attorneys in criminal cases." McMann v.
Richardson, 397 U.S. 759, 771 (1970). To establish
prejudice, a petitioner "must show the outcome of the
plea process would have been different with competent
advice." Lafler, 566 U.S. at 163. Because
petitioner rejected the State's plea offers, he must show
that, but for the ineffective advice of counsel, there is a
reasonable probability he would have accepted the plea offer
and received a sentence less severe than the sentence
imposed. Id. at 164.
respect to the first Strickland prong, the PCR court
found that counsel's September 19 letter provided
petitioner with "all of the information he needed to
decide for himself whether or not to take a deal."
Resp't Ex. 130 at 3. Specifically, the PCR court found:
[Petitioner's] art wrote him a letter that correctly
predicted that he would be found guilty at trial. Att then
goes on to accurately tell him the possible sentence ranges
including mandatory minimums and the possibility of
consecutive sentences. Att tells him what att thinks is most
likely range, but has made it clear to pet that ...