Thurlow v. Yordy
Filing
36
MEMORANDUM DECISION AND ORDER - Claims 1 and 4 of the Petition for Writ of Habeas Corpus (Dkt. 1 ) are DENIED. Because Claims 2 and 3 have already been dismissed, this entire action is DISMISSED with prejudice. The Court does not find its resolutio n of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. See 28 U.S.C. § 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner wishes to appeal, he must file a timely notice of appeal with the Clerk of Court. Petitioner may seek a certificate of appealability from the Ninth Circuit by filing a request in that court. Signed by Judge B. Lynn Winmill. ((jd)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
KENNETH E. THURLOW,
Case No. 1:15-cv-00223-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER
v.
AL RAMIREZ,
Respondent.
Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho
prisoner Kenneth E. Thurlow (“Petitioner” or “Thurlow”), challenging Petitioner’s
Bonner County conviction of first-degree murder. Dkt. 1. The Petition asserts four claims.
The Court previously dismissed Claims 2 and 3 of the Petition as procedurally
defaulted. See Dkt. 25. Claims 1 and 4 are now fully briefed and ripe for adjudication.
Respondent contends that Claims 1 and 4 must be denied on the merits, and Petitioner has
not contested Respondent’s argument as to Claim 1. See Dkt. 28, 32.
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by Respondent. See Dkt. 11, 23, 27; Fed. R. Evid.
201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006). Having carefully
reviewed the record in this matter, including the state court record, the Court concludes
that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court
will enter the following Order denying habeas corpus relief on Claims 1 and 4.
MEMORANDUM DECISION AND ORDER - 1
BACKGROUND
Absent clear and convincing evidence to the contrary, see 28 U.S.C. § 2254(e)(1),
the following facts of Petitioner’s case, as described by the Idaho Court of Appeals, are
presumed correct:
In August 2005, Thurlow and Christopher Lewers
went to a junkyard armed with concealed shotguns and
baseball bats. The victim, who was working on his vehicle
near the junkyard's garage, was shot in the head with a
shotgun at close range. Prior to the shooting, Thurlow
approached a caretaker, who was working in the junkyard
garage, and asked the caretaker if he had any muriatic acid.
The caretaker left the garage and went to his residence on the
junkyard property to look for the acid. When he was
unsuccessful in locating the acid, the caretaker began to walk
back to the garage to notify Thurlow. However, as he was
leaving his residence, he noticed Thurlow approaching.
Thurlow told the caretaker that the victim was dead and asked
for help loading the body into a nearby truck. The caretaker
walked back toward the garage and observed the victim's
body lying on the ground and Lewers standing nearby.
The caretaker informed Thurlow and Lewers that the
truck was inoperable and, fearful for his life, fled the
junkyard. After hiding out for several hours, the caretaker
returned to the junkyard and called the police. During the
caretaker's absence, Thurlow and Lewers stole several items
from the victim's truck, left the victim's body behind, and sold
the victim's possessions to an acquaintance later that night.
Thurlow was charged with first degree murder, and
Lewers was charged with aiding and abetting. Thurlow was
represented by one of the conflict public defenders for the
county. Prior to trial, Thurlow filed a motion for appointment
of co-counsel, which the district court denied. Thurlow went
to trial and, at the conclusion of its case-in-chief, the state
moved to amend the information to charge Thurlow in the
alternative with first degree murder by aiding and abetting in
the crime.
MEMORANDUM DECISION AND ORDER - 2
State v. Thurlow, 269 P.3d 813, 814 (Idaho Ct. App. 2011).
The jury, having been instructed on the first-degree murder charge as well as the
lesser-included offenses of second-degree murder and accessory to murder, found
Petitioner guilty of first-degree murder. State’s Lodging A-2 at 314–15. The verdict form
did not specify whether the jury found that Petitioner acted as a principal or as an aider
and abettor; in Idaho, a principal and an aider and abettor are equally culpable. See State
v. Johnson, 145 Idaho 970, 976, 188 P.3d 912, 918 (2008) (“In Idaho there is no
distinction between principals and aiders and abettors, and it is unnecessary the charging
document allege any facts other than what is necessary to convict a principal.”).
Petitioner received a fixed life sentence.1 Thurlow, 269 P.3d at 814.
On appeal, Petitioner raised a Sixth Amendment claim based on the trial court’s
denial of Petitioner’s request to appoint a second-chair attorney. State’s Lodging B-5 at
11–15. The Idaho Court of Appeals disagreed and affirmed Petitioner’s conviction and
sentence. Thurlow, 269 P.3d at 815–16. The Idaho Supreme Court denied review. State’s
Lodging B-11.
Petitioner then filed a post-conviction petition in the state district court. He
alleged, among other things, that his trial counsel rendered ineffective assistance during
plea negotiations. Petitioner claimed counsel informed him that, if Petitioner went to trial,
he would only be convicted of accessory to murder, which carried a maximum sentence
of five years. Petitioner asserted that this advice caused him to reject the state’s plea offer
Lewers, Petitioner’s co-defendant, pleaded guilty to first-degree murder and was sentenced to a unified
term of life imprisonment with twenty years fixed. State’s Lodging E-5 at 34.
1
MEMORANDUM DECISION AND ORDER - 3
of second-degree murder, with a ten-year sentence. State’s Lodging C-1 at 21, 91. The
state district court dismissed the petition, but the Idaho Court of Appeals remanded for an
evidentiary hearing on the plea-bargaining ineffective assistance claim. State’s Lodging
D-5.
Following that hearing, at which both Petitioner and his trial counsel testified, the
state district court concluded that Petitioner’s attorney had not performed deficiently and
that, even if she had, Petitioner had not shown prejudice. State’s Lodging E-4 at 656–62.
The Idaho Court of Appeals affirmed, and the Idaho Supreme Court denied review.
State’s Lodging F-4, F-10.
Petitioner filed the instant Petition while his post-conviction proceedings were
pending, and this case was stayed for a time. Once Petitioner’s state court proceedings
were completed, the instant case was reopened.
Claims 1 and 4 of the Petition remain for adjudication on the merits. In Claim 1,
Petitioner asserts that the trial court deprived him of his right to the effective assistance of
counsel by denying the request for a second-chair attorney. In Claim 4, Petitioner
contends that defense counsel rendered ineffective assistance by advising him to reject a
plea offer of second-degree murder.
HABEAS CORPUS STANDARD OF LAW
A federal court may grant habeas corpus relief when it determines that the
petitioner “is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). If the state court has adjudicated a claim on the merits,
habeas relief is further limited by § 2254(d), as amended by the Anti-terrorism and
MEMORANDUM DECISION AND ORDER - 4
Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, federal habeas relief
may be granted only where the state court’s adjudication of the petitioner’s claim:
(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d). “Deciding whether a state court’s decision involved an
unreasonable application of federal law or was based on an unreasonable determination
of fact requires the federal habeas court to train its attention on the particular reasons—
both legal and factual—why state courts rejected a state prisoner’s federal claims and to
give appropriate deference to that decision.” Wilson v. Sellers, 138 S. Ct. 1188, 1191–92
(2018) (internal quotation marks and citations omitted).
When a party contests the state court’s legal conclusions, including application of
the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests:
the “contrary to” test and the “unreasonable application” test.
Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002). Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1), the petitioner must show that the state court—although identifying “the
MEMORANDUM DECISION AND ORDER - 5
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
applie[d] it to the facts of the particular state prisoner’s case.” Williams (Terry) v. Taylor,
529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which
a state court unreasonably applies [Supreme Court] precedent; it does not require state
courts to extend that precedent or license federal courts to treat the failure to do so as
error.” White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (emphasis omitted).
Because AEDPA is designed “to ensure that federal habeas relief functions as a
guard against extreme malfunctions in the state criminal justice systems, and not as a
means of error correction,” a federal court cannot grant habeas relief simply because it
concludes in its independent judgment that the state court’s decision is incorrect or
wrong. Greene v. Fisher, 565 U.S. 34, 38 (2011) (internal citation and quotation marks
omitted). Rather, the state court’s application of federal law must be objectively
unreasonable to warrant relief. If there is any possibility that fair-minded jurists could
disagree on the correctness of the state court’s decision, § 2254(d)(1) precludes relief.
Nevada v. Jackson, 569 U.S. 505, 508–09 (2013).
The Supreme Court has emphasized that “even a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable.” Richter, 562 U.S. at 102.
To be entitled to habeas relief under § 2254(d)(1), “a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Id. at 103.
MEMORANDUM DECISION AND ORDER - 6
“Clearly established federal law” means the governing legal principles set forth in
the holdings—not the dicta—of the United States Supreme Court, as of the time the state
court rendered its decision. Williams, 529 U.S. at 412. The habeas statute does not require
an identical factual pattern before a legal rule must be applied. To the contrary, state
courts must reasonably apply the rules squarely established by the Supreme Court’s
holdings to the facts of each case. See White v. Woodall, 572 U.S. 415, 407–08 (2014).
On the other hand, if a habeas court must extend a rationale before it can apply to
the facts at hand, then by definition the rationale was not clearly established at the time of
the state court’s decision. Id. at 407. A federal habeas court “may not overrule a state
court for … holding a view different from its own” when the precedent from the Supreme
Court “is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17 (2003). Although
circuit precedent may be persuasive authority for determining whether a state court
decision is an unreasonable application of Supreme Court precedent, Duhaime v.
Ducharme, 200 F.3d 597, 600–01 (9th Cir. 2000), a federal court may not refine or
sharpen a general principle of Supreme Court habeas corpus jurisprudence into a specific
legal rule that the Court itself has not announced, Lopez v. Smith, 574 U.S. 1, 7 (2014).
If no Supreme Court decision confronted the specific question presented by a state
prisoner’s federal habeas petition—that is, if the circumstances of a petitioner’s case are
only similar to the Supreme Court’s precedents—then the state court’s decision cannot be
“contrary to” any holding from the Supreme Court. Woods v. Donald, 575 U.S. 312, 317
(2015) (per curiam). By the same token, a state court cannot unreasonably apply
MEMORANDUM DECISION AND ORDER - 7
established federal law that does not exist. See, e.g., Wright v. Van Patten, 552 U.S. 120,
126 (2008) (per curiam); Carey v. Musladin, 549 U.S. 70, 77 (2006).
“[R]eview under § 2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180
(2011). Therefore, evidence that was not presented to the state court cannot be introduced
on federal habeas review if a claim was adjudicated on the merits in state court and if the
underlying factual determinations of the state court were reasonable. See Murray v.
Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014) (“After Pinholster, a federal habeas
court may consider new evidence only on de novo review, subject to the limitations of
§ 2254(e)(2).”); Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (“If we determine,
considering only the evidence before the state court, that the adjudication of a claim on
the merits ... was based on an unreasonable determination of the facts, we evaluate the
claim de novo, and we may consider evidence properly presented for the first time in
federal court.”).
To be eligible for relief under § 2254(d)(2), the petitioner must show that the state
court decision was based upon factual determinations that were “unreasonable ... in light
of the evidence presented in the State court proceeding.” A “state-court factual
determination is not unreasonable merely because the federal habeas court would have
reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301
(2010); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under
AEDPA is not whether a federal court believes the state court’s determination was
incorrect but whether that determination was unreasonable—a substantially higher
MEMORANDUM DECISION AND ORDER - 8
threshold.”). State court factual findings are presumed to be correct and are binding on
the federal court unless the petitioner rebuts this presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); see Kirkpatrick v. Chappell, 926 F.3d 1157, 1170 (9th
Cir. 2019) (holding that § 2254(e)(1) “appears to apply to all factual determinations made
by state courts”).
If a petitioner satisfies § 2254(d)—either by showing that the state court’s
adjudication of the claim was contrary to, or an unreasonable application of Supreme
Court precedent or by establishing that the state court’s factual findings were
unreasonable—then the federal habeas court must review the petitioner’s claim de novo,
meaning without deference to the state court’s decision. Hurles, 752 F.3d at 778. When
considering a habeas claim de novo, a district court may, as in the pre-AEDPA era, draw
from both United States Supreme Court and well as circuit precedent, limited only by the
non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989).
Even under de novo review, however, if the factual findings of the state court are
not unreasonable under § 2254(d)(2), the Court must apply the presumption of
correctness found in 28 U.S.C. § 2254(e)(1) to any facts found by the state courts. Pirtle,
313 F.3d at 1167–68; Kirkpatrick, 926 F.3d at 1170 (“Unlike § 2254(d), § 2254(e)(1)’s
application is not limited to claims adjudicated on the merits [by a state court].”).
Conversely, if a state court factual determination is unreasonable, the federal court is not
limited by § 2254(e)(1) and may consider evidence outside the state court record, except
to the extent that § 2254(e)(2) might apply. Murray v. Schriro, 745 F.3d at 1000.
MEMORANDUM DECISION AND ORDER - 9
Generally, even if a petitioner succeeds in demonstrating a constitutional error in
his conviction, he is entitled to federal habeas relief only if the petitioner “can establish
that [the error] resulted in ‘actual prejudice.’” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993). Under the Brecht standard, an error is not harmless, and habeas relief must be
granted, only if the federal court has “grave doubt about whether a trial error of federal
law had substantial and injurious effect or influence in determining the jury’s verdict.”
O’Neal v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation marks omitted).
However, some types of claims “are analyzed under their own harmless error standards,
which can render Brecht analysis unnecessary.” Jackson v. Brown, 513 F.3d 1057, 1070
(9th Cir. 2008). Ineffective assistance of counsel claims are included in this category.
Musladin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009) (“[W]here a habeas petition
governed by AEDPA alleges ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), we apply
Strickland’s prejudice standard and do not engage in a separate analysis applying the
Brecht standard.”).
DISCUSSION
1.
Petitioner Is Not Entitled to Habeas Relief on Claim 1
Claim 1 asserts a violation of the Sixth Amendment based on the trial court’s
denial of Petitioner’s request for a second-chair attorney.
A.
Factual Basis of Claim 1
Before trial, Petitioner’s appointed counsel requested that the trial court appoint a
second-chair attorney to assist her. She stated that, as a solo practitioner and the last
MEMORANDUM DECISION AND ORDER - 10
contract attorney for the county, she did not have the time or resources necessary “to
properly represent [Petitioner] without being ineffective.” State’s Lodging A-3 at 42. She
noted that there were two prosecutors on the case and that she had to work on other cases
in order to pay her living expenses. Id. at 48.
The trial court denied the request for appointment of co-counsel:
I certainly have not seen anything from the
presentation of this case thus far that indicates to me that
either Mr. Lewers or Mr. Thurlow are not being effectively
represented in their cases. I am also mindful that these
attorneys are appearing here today, like many of the public
defenders that appear in front of the court on a regular basis,
and prosecutors that appear on a regular basis, are typically
overworked. I think that’s very normal and the court is
accustomed to that. And it’s also the court’s understanding
that we have a serious case here.
On the other hand, I’m not sure what quantifies this
particular case as a case, these cases that are any more serious
that any other case that carries a very serious potential
penalty….
The court can go on and on where the statutes carry
maximum possible penalty of life in prison. If every time we
have a case such as that that … would automatically mandate
a generation of multiple representation by counsel, I think
that would set a precedent that I don’t think that the law calls
for.
Id. at 51–52.
Although Idaho law requires the appointment of more than one defense attorney in
capital cases, unless the judge “makes specific findings that two attorneys are not
necessary,” see Idaho Criminal Rule 44.3(b), the trial court noted that no similar
requirement applies to noncapital cases. Id. at 52. The court also stated that even if
MEMORANDUM DECISION AND ORDER - 11
appointing second-chair counsel was “an appropriate and wise thing to do, it would
appear to the court it’s probably more a responsibility of the county … than it is of this
court to simply interfere with the contractual or the other legal obligations that the county
has.” Id. The trial court left open the possibility of appointing a second-chair attorney at
some point in the future, but found there was no showing, at that point, that Petitioner
was not receiving effective legal representation. Id. at 52–54. Finally, the court noted that
it had already “taken into account perhaps the unique and serious nature” of Petitioner’s
case by extending the investigative resources available to the defense. Id. at 54.
B.
Clearly Established Law
The Sixth Amendment guarantees criminal defendants the right to have the
assistance of counsel in their defense. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
However, the United States Supreme Court has never held that the Constitution requires
the appointment of more than one defense attorney to represent a criminal defendant, nor
has that Court delineated the standards by which a request for appointed co-counsel
should be considered.
There is no absolute right under the Sixth Amendment to a second-chair attorney.
As the Third Circuit has explained:
The Constitution specifies the quality of representation that
all criminal defendants, including capital defendants, must
receive, namely, “reasonably effective assistance.” Strickland,
466 U.S. at 687, 104 S. Ct. 2052. The Constitution does not
specify the number of lawyers who must be appointed. If a
single attorney provides reasonably effective assistance, the
Constitution is satisfied, and if a whole team of lawyers fails
to provide such assistance, the Constitution is violated. Thus,
MEMORANDUM DECISION AND ORDER - 12
there is no constitutional right per se to the appointment of
co-counsel ….
Riley v. Taylor, 277 F.3d 261, 306 (3d Cir. 2001). The Sixth Amendment guarantees the
effective assistance of counsel—it does not guarantee a certain number of attorneys.
The Sixth Amendment may, in certain circumstances, require the appointment of a
second-chair defense attorney, but only if that appointment is necessary to guarantee
effective legal assistance to the defendant in a particular case. However, the Supreme
Court has not issued any decision regarding how a court should analyze a request for the
appointment of co-counsel.
C.
The State Court’s Rejection of Claim 1 Was Not Unreasonable under
AEDPA
The Idaho Court of Appeals noted that the appointment of co-counsel in a
noncapital case was an issue of first impression in Idaho. The court set forth the
governing legal standard as follows:
The Sixth Amendment does not require that more than one
attorney be appointed for an indigent criminal defendant,
unless the appointment of more than one attorney is
necessary for the defendant to receive the effective assistance
of counsel which is his or her right under that Amendment.
Even in a capital case there is no blanket constitutional
requirement of appointment of more than one attorney,
although such a right may exist under the statutes of a
particular jurisdiction. Generally, when an indigent defendant
has been provided with an attorney at public expense, his or
her request for additional counsel is committed to the trial
court’s discretion. Denial of a request for appointment of
additional counsel is proper when the amount of preparation
and investigation required to defend the case is not unduly
burdensome. When the resources of one appointed counsel
will not suffice to adequately represent a defendant, the
appointment of cocounsel is proper.
MEMORANDUM DECISION AND ORDER - 13
Thurlow, 269 P.3d at 815 (emphasis added) (quoting 21A Am. Jur. 2d, Criminal Law
§ 1115 (2008)). The court of appeals surveyed cases from other states regarding the
appointment of second-chair counsel and concluded that a trial court should appoint cocounsel “where the record demonstrates that initial counsel [is] not adequately
representing the accused.” Thurlow, 269 P.3d at 815.
Applying this standard to Petitioner’s case, the appellate court determined that the
trial court appropriately found no evidence that Petitioner’s counsel was unable to render
effective assistance. Id. at 815–16.
Given that there is no clearly established Supreme Court precedent requiring the
appointment of a second-chair defense attorney in a criminal case—or explaining how a
request for such an attorney should be analyzed—the Idaho Court of Appeals’ rejection
of Claim 1 cannot be contrary to, or an unreasonable application of, such precedent. See
Donald, 575 U.S. at 317; Van Patten, 552 U.S. at 126; Musladin, 549 U.S. at 77.
Petitioner does not dispute that clearly established law fails to provide an avenue for
relief on Claim 1 under § 2254(d)(1), nor does Petitioner contend that the Idaho Court of
Appeals’ rejection of Claim 1 was based on an unreasonable determination of the facts
under § 2254(d)(2). Thus, the Court will deny Claim 1.
2.
Petitioner Is Not Entitled to Habeas Relief on Claim 4
In Claim 4, Petitioner asserts that his trial counsel rendered ineffective assistance
during plea negotiations—causing him to reject a plea offer of second-degree murder—
by informing him that, if he went to trial, he would be convicted only of being an
accessory to the murder.
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A.
Factual Basis of Claim 4
Before trial, in May 2006, the state conditionally offered Petitioner a plea to
second-degree murder, an offer that was open for a short period of time. Trial counsel
discussed the offer with Petitioner.
At the post-conviction evidentiary hearing, Petitioner testified that counsel
described the offer as carrying a fixed ten-year sentence. Petitioner testified that he did
not know that the offer also carried an indeterminate tail and said counsel did not show
him a copy of the offer. State’s Lodging E-5 at 8. Both Petitioner and trial counsel
testified that the plea offer was conditioned on Lewers also accepting the offer and that
counsel told Petitioner she did not believe Lewers would do so. Id. at 10, 39, 54.
According to Petitioner, counsel told him that if he went to trial, he “would be
found guilty of accessory to murder” with a maximum sentence of five years in prison.
Id. at 9. Petitioner acknowledged that counsel informed him that he could also be
convicted of felony murder, but said counsel told him that he “would probably be
convicted of the accessory” and “would be better off going to trial.” Id. at 9, 16, 28.
Petitioner testified that, on the advice of trial counsel, he rejected the offer. On crossexamination, however, Petitioner stated once again, “[Counsel] had warned me that I
could be convicted of felony murder, yes, sir.” Id. at 28.
Trial counsel’s testimony during post-conviction proceedings differed from
Petitioner’s in several respects. Counsel testified she told Petitioner that the offer carried
a unified life sentence with ten years fixed. Id. at 39. Also, though counsel did not
specifically remember handing Petitioner a copy of the offer, she testified that it was her
MEMORANDUM DECISION AND ORDER - 15
practice to do so, and that it “would have been totally unlike” her not to have provided
Petitioner a copy so they could go through the offer paragraph by paragraph. Id. at 43, 55.
Contrary to Petitioner’s testimony, trial counsel testified that she encouraged
Petitioner to take the offer to plead to second-degree murder:
I remember having to explain to him that even if they had
gone over there to threaten [the victim], and they had the
weapons and he got killed, that that would still at least be
felony murder and that would be a minimum of 10 years. And
that it didn’t matter who did the shooting, because they’re
doing it together.
And then I used the bank robber explanation that the
get-away driver is just as guilty of the shooting inside the
bank, even though they’re just sitting in the car, you know, in
terms of a legal analysis.
And I specifically remember talking to him and telling
him that this was a decent offer and we’d try to take it.
…
… I’m certain that I went over all the terms with him.
And I remember advising him to take the second-degree deal.
In my mind, it didn’t matter if Lewers wasn’t going to
take it, I try to convince the prosecution otherwise, that’s my
job. [Thurlow] was insistent that he go to trial—insistent.
Id. at 47–48, 55–56. Counsel also stated that an offer to plead to accessory was not on the
table and that she did not at that time tell Petitioner she thought he would be convicted of
accessory. Id. at 47, 56. Rather, counsel testified she told Petitioner that she believed he
would be convicted of felony murder at the least. Id. at 56.
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Several months later and only a week before trial, trial counsel sent Petitioner a
printed copy of Idaho Code § 18-205, which governs the crime of being an accessory to a
felony. The printout of the statute included a handwritten note from Petitioner’s counsel:
Kenny –
This is the crime I believe you would/will be found
guilty of if we go to trial. Maximum penalty is 5 yrs. State v.
Barnes is attached. It is a Bonner Co. case + explains how
little a person has to do to become an accessory after the fact.
Thought you might be interested.
State’s Lodging E-6 at 1 (Dkt. 27-1 at 2).
Trial counsel testified that, in writing the note to Petitioner, she did not intend to
communicate that she believed Petitioner would be convicted of accessory at the most.
Instead, she testified that she was responding to a specific question Petitioner had asked
her. State’s Lodging E-5 at 52. Counsel had been preparing jury instructions about lesser
included offenses and was working on the accessory instruction when she sent the note.
According to counsel, Petitioner had asked what counsel thought was the least serious
crime of which he would be convicted, and counsel intended the note to answer that
particular question. Id. at 52, 57.
When asked whether she told Petitioner, at any time, that “he shouldn’t worry
about being convicted of murder” because he would only be convicted of accessory,
counsel responded, “Never.” Id. at 53. By the time counsel sent Petitioner the note, the
second-degree plea offer had been off the table for three months. Id. at 51–52.
MEMORANDUM DECISION AND ORDER - 17
B.
Clearly Established Law
The Sixth Amendment right to the assistance of counsel includes the right to
effective assistance of counsel. A criminal defendant is not entitled to the best
representation possible. Rather, the “benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686 (1984).
A petitioner asserting ineffective assistance of counsel (“IAC”) must show that
(1) “counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment,” and (2) those errors prejudiced the
defendant by “depriv[ing] the defendant of a fair trial, a trial whose result is reliable.” Id.
at 687. A petitioner must establish both deficient performance and prejudice to prove an
IAC claim. Id. at 697. On habeas review, the court may consider either prong of the
Strickland test first, or it may address both prongs, even if one prong is not satisfied and
would compel denial of the IAC claim. Id.
Whether an attorney’s performance was deficient is judged against an objective
standard of reasonableness. Id. at 687-88. A reviewing court’s inquiry into the
reasonableness of counsel’s actions must not rely on hindsight:
Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to secondguess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance
MEMORANDUM DECISION AND ORDER - 18
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy. There are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client in the same way.
Id. at 689 (internal citations and quotation marks omitted).
Although a criminal defendant has “no right to be offered a plea, nor a federal
right that the judge accept it,” the right to the effective assistance of counsel extends to
the plea negotiation process.” Missouri v. Frye, 566 U.S. 134, 148 (2012) (citation
omitted). “[A]s a general rule, defense counsel has the duty to communicate formal offers
from the prosecution” to the defendant, and to advise the defendant to consider the offers.
Id.
“[S]trict adherence to the Strickland standard [is] all the more essential when
reviewing the choices an attorney made at the plea bargain stage,” for two reasons:
First, the potential for the distortions and imbalance that can
inhere in a hindsight perspective may become all too real. The
art of negotiation is at least as nuanced as the art of trial
advocacy, and it presents questions further removed from
immediate judicial supervision. There are, moreover, special
difficulties in evaluating the basis for counsel’s judgment: An
attorney often has insights borne of past dealings with the
same prosecutor or court, and the record at the pretrial stage
is never as full as it is after a trial. In determining how
searching and exacting their review must be, habeas courts
must respect their limited role in determining whether there
MEMORANDUM DECISION AND ORDER - 19
was manifest deficiency in light of information then available
to counsel. AEDPA compounds the imperative of judicial
caution.
Second, ineffective-assistance claims that lack
necessary foundation may bring instability to the very process
the inquiry seeks to protect. Strickland allows a defendant “to
escape rules of waiver and forfeiture.” Prosecutors must have
assurance that a plea will not be undone years later because of
infidelity to the requirements of AEDPA and the teachings
of Strickland. The prospect that a plea deal will afterwards be
unraveled when a court second-guesses counsel’s decisions
while failing to accord the latitude Strickland mandates or
disregarding the structure dictated by AEDPA could lead
prosecutors to forgo plea bargains that would benefit
defendants, a result favorable to no one.
Premo v. Moore, 562 U.S. 115, 125 (2011) (internal citations and quotation marks
omitted).
If a petitioner shows that counsel’s performance was deficient, the next step is the
prejudice analysis. “An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on
the judgment.” Strickland, 466 U.S. at 691. To satisfy the prejudice standard, a petitioner
“must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. As the
Strickland Court instructed:
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and factual
findings that were affected will have been affected in
different ways. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an isolated,
MEMORANDUM DECISION AND ORDER - 20
trivial effect. Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support. Taking
the unaffected findings as a given, and taking due account of
the effect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defendant has
met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.
Id. at 695-96. To constitute Strickland prejudice, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Richter, 562 U.S. 86 at 112.
To establish prejudice in the plea context, a petitioner “must show the outcome of
the plea process would have been different with competent advice.” Lafler v. Cooper, 566
U.S. 156, 163 (2012). Specifically, “where a plea offer has lapsed or been rejected
because of counsel’s deficient performance,” the prejudice prong of Strickland requires
the petitioner to demonstrate a reasonable probability that (1) the petitioner “would have
accepted the earlier plea offer had they been afforded effective assistance of counsel,”
(2) the plea offer would not have been withdrawn or canceled by the prosecution, (3) the
trial judge would have accepted the plea, and (4) the “end result of the criminal process
would have been more favorable by reason of a plea to a lesser charge or a sentence of
less prison time.” Frye, 566 U.S. at 147.
The foregoing standard, giving deference to counsel’s decision-making, is the de
novo standard of review. Another layer of deference—to the state court decision—is
required under AEDPA. In giving guidance to district courts reviewing Strickland claims
on habeas corpus review, the United States Supreme Court has explained:
The pivotal question is whether the state court’s application
of the Strickland standard was unreasonable. This is different
MEMORANDUM DECISION AND ORDER - 21
from asking whether defense counsel’s performance fell
below Strickland’s standard. Were that the inquiry, the
analysis would be no different than if, for example, this Court
were adjudicating a Strickland claim on direct review of a
criminal conviction in a United States district court. Under
AEDPA, though, it is a necessary premise that the two
questions are different. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an
incorrect application of federal law.” Williams, supra, at 410,
120 S. Ct. 1495. A state court must be granted a deference
and latitude that are not in operation when the case involves
review under the Strickland standard itself.
Richter, 562 U.S. at 101. That is, when evaluating an IAC claim under § 2254(d), this
Court’s review of that claim must be “doubly deferential.” Pinholster, 563 U.S. at 190
(internal quotation marks omitted).
C.
The State Court’s Rejection of Claim 4 Was Not Unreasonable under
AEDPA
In considering Claim 4, the Idaho Court of Appeals appropriately cited Strickland
and Lafler as the legal principles governing Petitioner’s IAC claim. State’s Lodging F-4
at 3. The state court held that Petitioner’s trial counsel adequately and accurately
informed him of the plea offer and, therefore, did not perform deficiently:
Thurlow did not present a viable claim of deficient
performance as required by the first prong of the Strickland
test. Thurlow asserts that it was objectively unreasonable for
his trial counsel to advise him to reject the plea offer and the
district court erred in finding Thurlow's testimony at the
evidentiary hearing did not establish deficient performance.
To support his position, Thurlow notes that during the
evidentiary hearing he testified that in late May or early June
his trial attorney told Thurlow that she thought if they went to
court that Thurlow would be found guilty of accessory to
murder and that carried a penalty of five years. However,
when asked if they had discussed other possibilities of what
may happen, Thurlow responded, “Well, I asked her about
MEMORANDUM DECISION AND ORDER - 22
that, and she told me that it could possibly be felony murder.”
On cross-examination Thurlow reiterated, “She had warned
me that I could be convicted of felony murder, yes, sir.”
Id. at 4 (emphasis added).
The court did not find the handwritten note from counsel to be particularly
relevant to Petitioner’s plea-offer discussion with counsel because it was sent three
months after the offer had expired. “Additionally, [Petitioner’s] trial counsel explained
that [the note] was in regard to a discussion they had about which other lesser included
jury instructions she would be requesting.” Id. Thus, Petitioner had “failed to show his
trial counsel was ineffective during the plea negotiation stage by providing inaccurate
information.” Id. at 4–5.
The Idaho Court of Appeals also held that Petitioner had not establish prejudice
from counsel’s advice regarding the plea offer:
Regarding the specifics of the plea offer, Thurlow testified his
trial counsel explained it was conditioned on both Thurlow
and Lewers accepting it, that counsel expressed her belief
that Lewers would not accept the offer, and that it was offered
for a short period of time. Regarding the requirement[] [that]
Lewers needed to accept its terms as well, Thurlow was asked
at the evidentiary hearing, “So basically the offer was there
but it wasn’t an offer because Chris Lewers wasn’t going to
accept it?” Thurlow answered, “That’s kind of what I
understood, yes.” There was no showing that the State’s plea
offer would ultimately have been available to Thurlow even if
he would have tried to accept it.
…
… Thurlow cannot demonstrate that there is a
reasonable probability that, but for counsel's errors, he would
not have pled guilty and would have insisted on going to trial.
MEMORANDUM DECISION AND ORDER - 23
Id. at 5 (emphasis added).
The double deference that applies when reviewing IAC claims in habeas
proceedings leaves no room for this Court to second-guess the decision of the Idaho
Court of Appeals. Pinholster, 131 S. Ct. at 1403; Strickland, 466 U.S. at 689. Petitioner
knew, at the time the offer was extended, that he could be convicted of felony murder at
trial and that the offer was conditioned on Lewers also accepting it. The offer had long
since lapsed when counsel sent Petitioner the note regarding a potential accessory
conviction. Thus, Petitioner has not shown either that his counsel performed deficiently
or that he was prejudiced by any allegedly deficient advice, and the Idaho appellate
court’s rejection of Claim 4 was not unreasonable under AEDPA.
CONCLUSION
The Idaho Court of Appeals reasonably rejected Claims 1 and 4. Therefore,
Petitioner is not entitled to habeas relief on these claims under 28 U.S.C. § 2254(d).
ORDER
IT IS ORDERED:
1.
Claims 1 and 4 of the Petition for Writ of Habeas Corpus (Dkt. 1) are
DENIED. Because Claims 2 and 3 have already been dismissed, this entire
action is DISMISSED with prejudice.
2.
The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If
Petitioner wishes to appeal, he must file a timely notice of appeal with the
MEMORANDUM DECISION AND ORDER - 24
Clerk of Court. Petitioner may seek a certificate of appealability from the
Ninth Circuit by filing a request in that court.
DATED: April 7, 2020
_________________________
B. Lynn Winmill
U.S. District Court Judge
MEMORANDUM DECISION AND ORDER - 25
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