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Crawford v. Fleming

United States District Court, D. Oregon

May 10, 2018

L.J. FLEMING, WARDEN, Wallens Ridge State Prison, and ELLEN ROSENBLUM, Oregon Attorney General, Respondents.


          Michael J. McShane, United States District Judge

         Along 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 prison.

         Petitioner 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.


         On 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 assault. Id.

         On July 26, 2005, petitioner's trial counsel was appointed and took over petitioner's defense. Resp't Ex. 119 at 1.

         On 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.[1] 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.

         On 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.

         On 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). [2] 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.

         According 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.").

         At 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.[3]

         Shortly 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.

         At 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.

         Following 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.

         On November 23, 2015, petitioner filed the instant Petition for Writ of Habeas Corpus.


         Petitioner 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).

         In 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.

         A 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'").

         Under 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." Id.

         To show 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.

         With 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 ...

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