Smith v. McKinney
Filing
88
REPORT AND RECOMMENDATION recommend 7 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 filed by Lee Andrew Smith be denied. Objections to R&R due by 11/21/2014. Signed by Magistrate Judge Leonard T Strand on 11/7/2014. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
LEE ANDREW SMITH,
Petitioner,
No. C11-3010-MWB
vs.
JAMES MCKINNEY, Warden, Fort
Dodge Correctional Facility,
REPORT AND RECOMMEDATION
ON PETITION FOR WRIT OF
HABEAS CORPUS PURSUANT TO 28
U.S.C. § 2254
Respondent.
____________________
TABLE OF CONTENTS
I.
INTRODUCTION........................................................................... 2
A.
Factual Background ............................................................... 2
B.
Procedural Background ........................................................... 5
1.
State Court Proceedings ................................................... 5
a.
Direct Appeal ....................................................... 7
b.
Postconviction Relief Proceedings .............................. 7
2.
Federal Proceedings ..................................................... 12
II.
STANDARD OF REVIEW .............................................................. 12
III.
DISCUSSION.............................................................................. 15
A.
Exhaustion and Procedural Default .......................................... 15
1.
Applicable Standards .................................................... 15
2.
Analysis .................................................................... 16
B.
Ineffective Assistance of Counsel - Failure to Advise Concerning
the Special 903B.1 Mandatory Lifetime Supervision Sentence .......... 16
1.
Applicable Standards .................................................... 16
2.
Analysis: Did the Iowa Court of Appeals Decision Result in
an Unreasonable Application of Federal Law? ..................... 18
IV.
ORDER AND RECOMMENDATION ................................................ 20
I.
INTRODUCTION
On June 28, 2006, Lee Andrew Smith plead guilty in the Iowa District Court for
Black Hawk County to three felony charges. He was sentenced to prison for up to forty
years, a sentence agreed to by the parties during plea negotiations. Smith later challenged
his guilty plea through various state court proceedings. The Iowa District Court granted,
in part, his application for postconviction relief (PCR), but the Iowa Court of Appeals
reversed that ruling and denied the application in its entirety.
On June 28, 2011, Smith filed a pro se petition (Doc. No. 7) for writ of habeas
corpus in this court pursuant to 28 U.S.C. § 2254. This action was stayed (Doc. No.
18) for a lengthy period of time, at Smith’s request, because a related state court motion
remained pending. After the stay was lifted, Smith filed a merits brief (Doc. No. 51) on
April 9, 2013. Respondent James McKinney (Respondent) filed his merits brief (Doc.
No. 52) on June 7, 2013. Smith filed a supplemental memorandum (Doc. No. 85) on
May 22, 2014, and Respondent filed a response (Doc. No. 86) on June 25, 2014. The
petition is fully submitted and ready for decision. The Honorable Mark W. Bennett,
United States District Judge, has referred the petition to me for preparation of a report
and recommended disposition.
A.
Factual Background
The Iowa Court of Appeals summarized the factual background of Smith’s trial,
guilty plea and motion in arrest of judgment in its opinion on Smith’s PCR appeal. Absent
rebuttal by clear and convincing evidence, I must presume that any factual determinations
made by the Iowa courts were correct. 28 U.S.C. § 2254(e)(1); see Bell v. Norris, 586
F.3d 624, 630 (8th Cir. 2009) (a federal court must deem factual findings by the state
court to be presumptively correct, subject to disturbance only if proven incorrect by clear
and convincing evidence). Smith has made no effort to rebut any factual findings made
2
by the Iowa courts.1 As such, I adopt all factual findings made by the Iowa Court of
Appeals. Those include the following background and procedural facts:
In April 2006, Smith entered his ex-girlfriend's home, armed
with a knife, and physically and sexually assaulted her. On
April 16, 2006, the State charged Smith with first-degree
burglary in violation of Iowa Code sections 713.1 and 713.3
(2005) (Count I), third-degree sexual abuse, enhanced as a
habitual offender, in violation of sections 709.1, 709.4,
902.8, and 902.9(2) (Count II), and domestic abuse assault
causing bodily injury, enhanced as a habitual offender, in
violation of sections 708.2A(4), 902.8, and 902.9(2) (Count
III).
Before trial, the State offered Smith a plea deal that would
have resulted in a twenty-five year prison sentence. The State
also indicated that if Smith did not take the deal, it might file
a first-degree kidnapping charge against him. Smith's trial
attorney, Andrea Dryer, informed Smith of the State's offer
and the possibility of a first-degree kidnapping charge, but
also told Smith she did not believe the State would have a
strong kidnapping case.
Smith declined the plea offer, and the case proceeded to trial
on June 27, 2006. During the victim's testimony, Smith
leaned over to Dryer and whispered loudly that he “wanted
this to stop” and didn't want the victim to “go through this
anymore.” Smith then repeated himself, speaking loudly
enough that Dryer believed some of the jurors had heard.
Dryer told the trial judge that she and her client needed a
break. A recess was called, after which the State and Smith
negotiated a plea bargain. Pursuant to the plea agreement,
Smith pled guilty to all three counts, and the State
recommended a sentence of twenty-five years on Count I,
fifteen years on Count II, and fifteen years on Count III, with
1
I say that Smith “has made no effort to rebut” those findings because, despite filing two briefs
and indicating that he disagrees with one finding by the Iowa Court of Appeals (a finding that
relates to the issue of prejudice), he has done nothing to actually prove, by reference to clear
and convincing evidence, that any finding was incorrect.
3
the sentences on Counts II and III to run concurrent to each
other but consecutive to the sentence on Count I.
During the required Iowa R.Crim. P. 2.8(2)(b) colloquy,
Smith stated he was forty-nine years of age, had a high school
education, and understood the charges against him. He further
indicated that he was pleading guilty in order to avoid a firstdegree kidnapping charge and the lifetime prison sentence that
would result if he were convicted thereon. The judge
informed Smith that he would have to take a batterer's
education class, register as a sex offender, and pay a civil
penalty. Smith was not told he would be subject to mandatory
lifetime supervision under Iowa Code section 903B.1
(Supp.2005). The district court accepted Smith's plea.
Smith requested immediate sentencing. The judge advised
Smith that if he was sentenced immediately, he would waive
his right to file a motion in arrest of judgment and could not
challenge any defects in the plea proceedings. The colloquy
indicates Smith understood he was waiving that right. The
court then sentenced Smith to the forty-year sentence
recommended by the prosecution, consisting of twenty-five
years on Count I plus fifteen years each on Counts II and III,
the sentences on the latter two counts running concurrently.
The sentence imposed by the court did not include the
mandatory section 903B.1 lifetime parole term.
Later, the district court entered an order finding that Smith's
sentence did not comply with section 903B.1, set it aside, and
scheduled a resentencing hearing for December 18, 2006. At
that time, Smith asked to withdraw his guilty plea, and the
hearing was continued to January 16, 2007. Five days before
the scheduled resentencing hearing, Smith filed a motion in
arrest of judgment and a formal application to withdraw his
guilty plea. The district court then entered an order granting
Smith a new trial, holding that: (1) the omission of the section
903B.1 lifetime parole term was an illegal sentence that could
be corrected at any time; (2) Smith was not informed of the
section 903B.1 sentence, causing his plea to be unknowing;
and (3) the improper plea invalidated the entire agreement and
not just the sexual assault plea. The State appealed. On
4
appeal, the supreme court found Smith had waived his right
to file a motion in arrest of judgment and remanded the case
for resentencing, but stated that Smith could bring a postconviction relief action challenging his guilty plea following
resentencing. State v. Smith, 753 N.W.2d 562, 565 (Iowa
2008).
After procedendo issued, the district court resentenced Smith
as before to forty years' imprisonment, consisting of twentyfive years on the burglary charge, and fifteen years on the
sexual abuse and domestic abuse assault charges to be served
concurrently. The court added the lifetime parole term
required by section 903B.1.
Smith v. State, 791 N.W.2d 712, 2010 WL 4867384, at *1-2 (Iowa Ct. App. 2010)
(unpublished table decision) (hereafter the PCR Appeal Decision) [footnote omitted].
Additional factual findings made by the Iowa Court of Appeals will be discussed, as
necessary, infra.
B.
Procedural Background
1.
State Court Proceedings
Smith was charged with first-degree burglary (Count I), third-degree sexual
assault, enhanced as a habitual offender (Count II) and domestic abuse assault causing
bodily injury, enhanced as a habitual offender (Count III). He rejected a plea offer before
trial. The case proceeded to trial, during which Smith was represented by Andrea Dryer.
While the first witness was testifying, Smith interrupted the trial and, after conferring
with his attorney, announced he wanted to plead guilty. On June 28, 2006, he plead
guilty to all three charges. The plea agreement included a recommended sentence of
twenty-five years on Count I, fifteen years on Count II and fifteen years on Count III,
with the sentences on Counts II and III running concurrently but consecutively to Count
I, for a total of forty years imprisonment.
5
After the district court accepted his guilty plea, Smith requested immediate
sentencing. The trial judge explained that by accepting immediate sentencing, Smith
would give up his right to file a motion in arrest of judgment. Smith indicated he
understood he waived that right and was then sentenced in accordance with the parties’
recommendation. The court did not inform Smith that pursuant to Iowa Code § 903B.1,2
he would be subject to a mandatory lifetime term of parole supervision as a result of his
guilty plea to Count II – the sexual assault charge. Nor did the court impose that sentence.
On October 31, 2006, the Chief Judge of the First Judicial District, sua sponte,
entered an order finding Smith’s sentence did not comply with section 903B.1 and
requiring that Smith be resentenced in compliance with the law. On November 15, 2006,
the Iowa District Court entered an order setting aside Smith’s original sentence and
scheduled resentencing for December 18, 2006. During that hearing, Smith requested to
withdraw his guilty plea based on the failure to inform him of the mandatory lifetime
supervision requirement. The court continued resentencing to January 16, 2007. On
2
At the time Smith was sentenced, section 903B.1 read as follows:
A person convicted of a class “C” felony or greater offense under chapter 709,
or a class “C” felony under section 728.12, shall also be sentenced, in addition
to any other punishment provided by law, to a special sentence committing the
person into the custody of the director of the Iowa department of corrections for
the rest of the person's life, with eligibility for parole as provided in chapter 906.
The special sentence imposed under this section shall commence upon completion
of the sentence imposed under any applicable criminal sentencing provisions for
the underlying criminal offense and the person shall begin the sentence under
supervision as if on parole. The person shall be placed on the corrections
continuum in chapter 901B, and the terms and conditions of the special sentence,
including violations, shall be subject to the same set of procedures set out in
chapters 901B, 905, 906, and chapter 908, and rules adopted under those chapters
for persons on parole. The revocation of release shall not be for a period greater
than two years upon any first revocation, and five years upon any second or
subsequent revocation. A special sentence shall be considered a category “A”
sentence for purposes of calculating earned time under section 903A.2.
Iowa Code § 903B.1 (as enacted by Iowa Acts 2005 (81 G.A.) ch. 158, H.F. 619, § 39).
6
January 11, 2007, Smith filed a motion in arrest of judgment and application to withdraw
his guilty plea. The court granted his motion, finding that the lifetime parole term was a
direct consequence of his plea and the failure to inform him of that direct consequence
rendered his plea unknowing and illegal. The court ordered a new trial on all counts,
finding that this defect invalidated the entire plea.
a.
Direct Appeal
The State appealed the district court’s order, arguing that the court improperly
considered Smith’s motion in arrest of judgment because Smith had waived the right to
file such a motion during the original sentencing. On July 25, 2008, the Iowa Supreme
Court reversed the district court’s judgment. State v. Smith, 753 N.W.2d 562 (Iowa
2008). The Court held that Smith waived his right to file a motion in arrest of judgment
and that this waiver continued to apply at the time of his resentencing. The Court
remanded the case for the sole purpose of resentencing Smith. Id. at 565. The Court
noted that Smith could then challenge his guilty plea through a PCR action. Id. On
remand, the district court resentenced Smith as before, imposing imprisonment of up to
forty years, and added the lifetime parole term in accordance with section 903B.1.
b.
Postconviction Relief Proceedings
i.
Iowa District Court Decision
Smith filed his PCR application in the Iowa District Court on September 28, 2009.
He argued that he received ineffective assistance of counsel in that (1) he was coerced
into pleading guilty and (2) his counsel failed to file a motion in arrest of judgment raising
the district court’s failure to advise him of the mandatory lifetime parole requirement.
The district court held an evidentiary hearing on September 28, 2009, and ruled on
September 29, 2009. The court rejected Smith’s claim that he was coerced into pleading
guilty, noting that during the victim’s trial testimony Smith told Dryer – in a voice loud
7
enough for jurors to hear – that he did not want to put the victim through the stress of
testifying and wanted to plead guilty. The court credited Dryer’s testimony that at no
time did she indicate a lack of faith in Smith’s case or tell Smith that he should plead
guilty.
The district court found for Smith on his second ineffective assistance of counsel
claim, finding it was a breach of duty for his counsel to not inform him that he would be
subject to mandatory lifetime parole.
The court further found there was sufficient
prejudice to require vacating Smith’s plea with regard to Count II, stating:
The court is not able to accept the State’s argument that had Smith been so
informed, it would not have mattered and he would have entered a guilty
plea to Count II [sexual abuse]. The court accepts Smith’s testimony that
had he been aware of the applicability of section 903B.1, he would not have
entered a plea of guilty to Count II.
See PCR Appeal Decision at *3 (quoting the district court’s ruling). Thus, the district
court vacated Smith’s conviction and sentence with regard to Count II. As for the other
two counts, the court held that because the section 903B.1 requirement applied only to
the sexual abuse count, the guilty plea was unknowing and involuntary only with regard
to that charge. As a result, the court declined to vacate Smith’s convictions and sentences
on Counts I and III. The court noted that the State could retry Smith on Count II, if it so
chose.
ii.
Appellate Court Decision
On appeal, Smith argued that once the district court found ineffective assistance
of counsel, it was required to vacate the entire plea, not just his plea of guilty to Count
II. The State cross-appealed. While the State did not challenge the district court’s finding
that Smith’s counsel failed to perform an essential duty, it argued that Smith failed to
demonstrate prejudice. On November 24, 2010, the Iowa Court of Appeals issued the
PCR Appeal Decision. The court agreed with the State that Smith had failed to establish
8
prejudice, finding he had not shown “a reasonable probability he would not have pled
guilty had he been informed” of the lifetime parole requirement. PCR Appeal Decision
at *4. The court noted that at the time of trial and his guilty plea, Smith was forty-nine
years old, understood he was pleading guilty to three felonies and that the State was
recommending a forty-year prison sentence. Id. at *5. In light of these circumstances,
the court stated: “It seems implausible to us that the lifetime special parole term would
have been a dealbreaker, had Smith been told about it.” Id. Instead, based on Smith’s
testimony at the PCR trial, the court found that Smith’s “real concern had to do with the
possibility of being charged with first-degree kidnapping, which would carry a lifetime
sentence without parole.” Id. Smith testified as follows:
Q. If you had known that there was a special sentencing
provision that required you to be on lifetime parole, would
you still have pled guilty at the time you did?
A. No, ma‘am. I wouldn't have pled guilty to that. I didn't
even really want to plead guilty to the 40 years.
Q. But you did because?
A. Because I was being told I was going to get a life sentence
for the First Degree Kidnapping. Said I was making a mistake
for going to trial.
Q. And you're saying Ms. Dryer told you that during [the
victim's] testimony?
A. Those are her exact words.
Q .... you must have thought [the victim] was doing a very
good job because you were concerned about being convicted
of Kidnapping in the First Degree and serving life, so you
took the plea.
A. I did not commit a Kidnapping First Degree. If I did, give
it to me then. Where is it at?
9
Q. At the time she was testifying, you were the only one that
interrupted the proceedings and wanted to enter a plea;
correct?
A. That's wrong. My lawyer was telling me if I didn't take
the deal, that I was going to get a First Degree Kidnapping
and I have been through the law book and I haven't committed
to First Degree Kidnapping. The only thing you can charge
me with is false imprisonment.
Q. Do you recall during the plea colloquy with the judge at
the time of your plea that you told him the reason you were
pleading and the reason you took the plea offer is because you
didn't was any life sentence so you were asking the court to
accept you plea offer?
A. Yeah. I do recall that. Anybody in their right mind would
accept the plea bargain if they thought they were going to get
First Degree Kidnapping. They were illiterate to the law as I
was at that time. I'm not illiterate to the law anymore. I know
my constitutional rights now.
Q. So you were taking this [plea deal] regardless [of] whether
anybody told you about lifetime parole or not. That didn't
even matter to you, did it?
A. My lawyer hadn't told me the truth in trial. I wouldn't
have—she had let me went on the trial, I would have pursued
going to trial.
Q. What are you saying she didn't tell you the truth about?
A. What do I think she didn't tell me the truth about? She
knew there wasn't never no First Degree Kidnapping I had
committed anyway. You know that—I know that as of now. I
have been down here for three years—
Id. The Iowa Court of Appeals faulted the district court for stating it “accepts Mr.
Smith's testimony that had he been aware of the applicability of 903B.1, he would not
10
have entered a plea of guilty to Count II.” Id. According to the court, Smith’s testimony
– as quoted above – “does not really say that.” Id. The court then stated:
Moreover, the court elsewhere found Smith's testimony “not
believable.” It rejected Smith's postconviction testimony in
every other meaningful aspect. It found credible Dryer's
testimony that Smith wanted to plead guilty after hearing the
victim's direct testimony. Even if Smith had unequivocally
testified at the postconviction relief hearing that he would not
have pled guilty had he been aware of the section 903B.1
lifetime parole term, a court does not have to accept this kind
of self-serving claim. See Kirchner [v. State], 756 N.W.2d
[202,] 206 [(Iowa 2008)] (“Kirchner offered no evidence to
support his self-serving statement that he would have accepted
the plea deal had he known the great likelihood of his
conviction of first-degree kidnapping.”); State v. Tate, 710
N.W.2d 237, 241 (Iowa 2006) (holding that a statement,
standing alone, that is a conclusory claim of prejudice is not
sufficient to satisfy the prejudice element).
Id. at *6.
The Iowa Court of Appeals concluded that “[t]aking the record as a whole,
including Smith's testimony, Dryer's testimony, and the circumstances surrounding the
original trial and plea hearing, it cannot sustain a finding that Smith would have rejected
the plea bargain had he known of the mandatory parole term.” Id. Thus, the court
ordered that Smith’s PCR application be dismissed.
Id. at *7.
This rendered it
unnecessary for the court to consider Smith’s argument that the district court should have
vacated his convictions and sentences on all three counts. Id.
Smith requested further review by the Iowa Supreme Court. His application was
denied February 2, 2011, and the Writ of Procedendo issued February 14, 2011.
11
2.
Federal Proceedings
In his petition to this court, Smith asserted three grounds for relief. Doc. No. 7
at 3-5.
In his merits brief, Smith has condensed those grounds to two ineffective
assistance of counsel claims based on (a) not being informed about the parole board’s
process for determining parole and (b) not being informed about the section 903B.1
mandatory lifetime supervision sentence. Doc. No. 85 at 5. He contends his entire guilty
plea should be vacated because he was denied his right to effective assistance of counsel
during all portions of his proceedings. Id.
II.
STANDARD OF REVIEW
Smith brings this petition pursuant to 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 2254(a)
provides that “a district court shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a).
Under AEDPA, federal courts apply a “deferential standard of review” to the state
court’s determinations of law and fact if the state court adjudicated the claim on the
merits. Taylor v. Bowersox, 329 F.3d 963, 967-68 (8th Cir. 2003). Section 2254(d)
provides:
An application for a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the 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
12
(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). Smith brings his petition under section 2254(d)(1). There are two
categories of cases under this section that may provide a state prisoner with grounds for
federal habeas relief: (1) if the relevant state-court decision was “contrary to . . . clearly
established Federal law, as determined by the Supreme Court of the United States,” or
(2) if the relevant state-court decision “involved an unreasonable application of . . .
clearly established Federal law, as determined by the Supreme Court of the United
States.”
Williams v. Taylor, 529 U.S. 362, 404-05 (2000) (quoting 28 U.S.C. §
2254(d)(1)) [emphasis added by the Court].
A
state
court
can
violate
the
“unreasonable
application”
clause
of
section 2254(d)(1) in two ways: (a) where “the state court identifies the correct governing
legal rule from the [Supreme] Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case”; or (b) where “the State court either unreasonably extends
a legal principle from [Supreme] Court precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new context where it should
apply.” Williams, 529 U.S. at 407.
The state court reviews a postconviction relief petition based on ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). Under
Strickland, the person challenging a conviction must show that (1) counsel provided
deficient assistance to the extent that “counsel’s representation fell below an objective
standard of reasonableness” and (2) there was prejudice as a result. Id. at 687-88. The
errors must be “so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment” and the defendant was deprived of a fair trial.
Id. at 687. The court applies a “strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id. at 689.
13
Federal habeas courts must then find that a state court’s application of Strickland
was unreasonable under section 2254(d) to grant habeas relief. This is a highly deferential
inquiry because “[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.”
Harrington v. Richter, 562 U.S. 86, ___, 131 S. Ct. 770, 785 (2011). “Federal habeas
courts must guard against the danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id. at 788. Therefore,
“even a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. at 786 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
For a claim to be successful under section 2254(d)(1), “[i]t is not enough that the
state court applied clearly established federal law erroneously or incorrectly—the
application must additionally be unreasonable.”
Jones v. Wilder-Tomlinson, 577
F. Supp. 2d 1064, 1073-74 (N.D. Iowa 2008) (citing Williams, 529 U.S. at 411; Bell v.
Cone, 535 U.S. 685, 694 (2002) (“an unreasonable application is different from an
incorrect one.”)). See Ringo v. Roper, 472 F.3d 1001, 1003 (8th Cir. 2007) (same).
“[A] federal court may not grant the petition unless the state court decision, viewed
objectively and on the merits, cannot be justified under existing Supreme Court
precedent.” Jones, 577 F. Supp. 2d at 1074 (citing James v. Bowersox, 187 F.3d 866,
869 (8th Cir. 1999)); see Collier v. Norris, 485 F.3d 415, 421 (8th Cir. 2007) (to be
overturned, the state court’s application of federal law must have been “objectively
unreasonable”) (citing Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir. 2005)).
The petitioner bears the burden of showing that the state court’s ruling on the claim
presented was “so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
Richter, 131 S. Ct. at 786-87. “Section 2254(d) reflects the view that habeas corpus is
a ‘guard against extreme malfunctions in the state criminal justice systems,’ not a
14
substitute for ordinary error correction through appeal.” Id. at 786 (quoting Jackson v.
Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in judgment)).
III.
A.
DISCUSSION
Exhaustion and Procedural Default
1.
Applicable Standards
In order for a federal court to enter a writ of habeas corpus in behalf of a state
prisoner, the prisoner must first exhaust all available state court remedies. 28 U.S.C.
§2254(b)(1). In order to exhaust a claim, the prisoner must give the state courts a full
and fair opportunity to resolve any constitutional issues by invoking one complete round
of the State’s established appellate review process. O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). To satisfy this ‘fairly present’ requirement, the petitioner is required
to “refer to a specific federal constitutional right, a particular constitutional provision, a
federal constitutional case, or a state case raising a pertinent federal constitutional issue”
in the state court. Abdullah v. Groose, 75 F.3d 408, 411-12 (8th Cir. 1996).
If a prisoner has not presented his habeas claims to the state court, the claims are
defaulted if a state procedural rule precludes him from raising the issue now. Abdullah,
75 F.3d at 411. Federal courts will not review a procedurally defaulted habeas claim
because the state court is deprived of the opportunity to address those claims in the first
instance. Id. The Supreme Court stated:
We now make it explicit: In all cases in which a state prisoner has defaulted
his federal claims in state court pursuant to an independent and adequate
state procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
15
2.
Analysis
Smith argues that his trial counsel was ineffective for (1) failing to advise him of
the parole board’s requirements for determining parole eligibility and (2) failing to advise
him of the mandatory lifetime parole requirement before he plead guilty to the three
counts. Smith concedes that the first claim was “[n]ot presented to the Iowa state
courts.”3 Doc. No. 51 at 11. As the above discussion suggests, this presents a problem
for Smith. He has not attempted to make the showing that would be necessary to allow
review of the first claim despite this defect. As such, I find that Smith’s first ineffective
assistance of counsel claim, based on his counsel’s alleged failure to advise him of parole
board eligibility requirements, cannot properly be considered in determining whether
Smith is entitled to a writ of habeas corpus.4
By contrast, Respondent concedes that Smith exhausted the available state
remedies regarding his claim based on counsel’s failure to inform him of the mandatory
lifetime parole requirement. Doc. No. 86 at 15-16. Smith is entitled to have the merits
of that claim considered.
B.
Ineffective Assistance of Counsel - Failure to Advise Concerning the Special
903B.1 Mandatory Lifetime Supervision Sentence
1.
Applicable Standards
The Sixth Amendment right to effective assistance of counsel extends to the pleabargaining process. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012). The two-part
Strickland v. Washington test applies to challenges to guilty pleas based on ineffective
assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Under that test, the
petitioner must show (1) deficiency, that is, counsel’s representation fell below an
3
Nor was this claim described in Smith’s habeas petition. See Doc. No. 7.
4
Even if that claim could be considered, for the reasons advanced by Respondent I find that the
claim would necessarily fail on its merits. See Doc. No. 86 at 16-22.
16
objective standard of reasonableness and (2) prejudice, that is, that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Id. at 57.
With regard to the first prong, a defendant who plead guilty upon the advice of
counsel may attack the voluntary and intelligent character of the plea only by showing
that the advice he received from counsel “was not within the range of competence
demanded of attorneys in criminal cases.” Id. at 56 (citing Tollett v. Henderson, 411
U.S. 258, 267 (1973)) (in turn citing McMann v. Richardson, 397 U.S. 759, 771 (1970)).
A court considering a claim of ineffective assistance must apply a “strong presumption”
that counsel’s representation was within the “wide range” of reasonable professional
assistance. Richter, 131 S. Ct. at 787. An attorney’s failure to advise a defendant of a
collateral penalty is not below the objective standard of reasonableness. United States v.
Degand, 614 F.2d 176, 177-78 (8th Cir. 1980). However, the defendant must be advised
of the direct consequences of the guilty plea. George v. Black, 732 F.2d 108, 110 (8th
Cir. 1984) (citing Brady v. United States, 397 U.S. 742, 755 (1970)).
Direct
consequences are those that have “definite, immediate and largely automatic effect on the
range of the defendant’s punishment.” George, 732 F.2d at 110.
The second prong – prejudice – focuses on “whether counsel’s constitutionally
ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 59.
To demonstrate prejudice, the petitioner must show “there is a reasonable probability
that, but for counsel's errors, [the defendant] would not have pleaded guilty and would
have insisted on going to trial.” Garmon v. Lockhart, 938 F.2d 120, 121 (8th Cir. 1991)
(alteration in original) (quoting Hill, 474 U.S. at 59). A reasonable probability is a
probability sufficient to undermine confidence in the outcome, it is not enough to show
that the errors had some conceivable effect on the outcome of the proceeding. Richter,
131 S. Ct. at 787. Under the Strickland/Hill prejudice test, the analysis of whether or
17
not the defendant would have plead guilty is subjective, not objective. See Wanatee v.
Ault, 259 F.3d 700, 704 (8th Cir. 2001).
2.
Analysis: Did the Iowa Court of Appeals Decision Result in an
Unreasonable Application of Federal Law?
Smith argues his Sixth Amendment right to effective counsel was violated when
he was not informed of the direct consequences of his guilty plea. Specifically, he
contends his guilty plea must be set aside due to his attorney’s failure to advise him that
by pleading guilty to Count II, sexual abuse in the third degree, he would be sentenced
to mandatory lifetime supervision after release from prison. Smith argues that because
he was misinformed, his entire guilty plea was unknowing, unintelligent and
unconstitutional due to the ineffectiveness of counsel. In seeking federal habeas relief,
Smith asserts that by allowing his guilty plea to stand and not returning his case to the
pre-plea stage, the Iowa Court of Appeals unreasonably applied federal law regarding
ineffective assistance of counsel with regard to guilty pleas.
Respondent argues that the Iowa courts applied the correct legal standards
regarding ineffective assistance of counsel and that their application was reasonable.
Respondent further asserts that even if Smith’s trial counsel’s performance was deficient,
the Iowa Court of Appeals did not err in finding that Smith failed to demonstrate
prejudice, as he failed to show that he would have insisted on going to trial had he been
advised of the mandatory lifetime parole term.
The Iowa Court of Appeals applied the Strickland test to determine whether
Smith’s counsel failed to perform an essential duty and whether that failure resulted in
prejudice against the defendant. PCR Appeal Decision at *4. This was the correct legal
standard. With regard to the first Strickland prong, the Iowa Court of Appeals found
that Smith’s counsel’s failure to advise Smith of the mandatory lifetime parole term
constituted a failure to perform an essential duty, thus satisfying that prong. Id. Indeed,
the court noted that the State of Iowa did not challenge this aspect of the PCR trial court’s
18
ruling.
Id.
It is not entirely clear, from Respondent’s brief, whether Respondent
contends that the Iowa Court of Appeals erred in finding that Smith satisfied the first
Strickland prong. Regardless, in light of the deferential standard that applies in this case,
I adopt the Iowa Court of Appeals’ finding that Smith’s trial counsel performed
deficiently, and thus failed to perform an essential duty, by failing to advise Smith that
he faced a mandatory lifetime term of parole if he plead guilty to Count II.
The real issue here is whether Smith satisfied the second Strickland prong –
prejudice. Or, to be more precise, did the Iowa Court of Appeals reasonably apply
federal law in concluding that Smith failed to show prejudice? The court explained the
legal standard correctly, noting that Smith was required to demonstrate “a reasonable
probability he would not have pled guilty had he been informed of the section 903B.1
sentence.” Id. (compare Hill, 474 U.S. at 59 (the defendant must show that there is a
reasonable probability that, but for counsel's errors, he would not have pleaded guilty
and would have insisted on going to trial.”)). The court then determined, based on the
record before it, that Smith failed to make this showing. The court noted Smith’s
testimony that his first concern, and primary reason for pleading guilty, was to avoid
receiving a life prison sentence for a kidnapping charge. Id. at *5. He complained that
his attorney had not been “telling him the truth” about that kidnapping charge. Id. The
court found “the §903B.1 special parole term was, at most, a sidelight, introduced only
on leading questioning by counsel.” Id. at *6. The court then concluded: “This record
does not support a finding that the section 903B.1 parole term would have altered Smith's
decision to plead guilty.” Id.
Thus, as to the second Strickland prong, the Iowa Court of Appeals identified and
applied the correct standard and then made the factual determination that Smith failed to
satisfy that standard. As noted above, I must presume that any factual determinations
made by the Iowa courts were correct. 28 U.S.C. § 2254(e)(1); see Bell v. Norris, 586
F.3d 624, 630 (8th Cir. 2009). Smith has not pointed to clear and convincing evidence
in the record to rebut this presumption. At most, he merely argues, as he did before,
19
that he would not have plead guilty but for his attorney’s failure to advise him of the
mandatory lifetime parole term. This self-serving, conclusory argument is not sufficient
to overcome the contrary finding made by the Iowa Court of Appeals. By contrast, the
evidence referenced by the court, including Smith’s own testimony and the testimony of
his trial counsel, is consistent with that finding.
As noted above, “a federal court may not grant [a section 2254] petition unless the
state court decision, viewed objectively and on the merits, cannot be justified under
existing Supreme Court precedent.” Jones, 577 F. Supp. 2d at 1074 (citing James v.
Bowersox, 187 F.3d 866, 869 (8th Cir. 1999)). Thus, Smith has the burden of showing
that the Iowa Court of Appeals ruling was “so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Richter, 131 S. Ct. at 786-87. He has not come close to
making this showing. The Iowa Court of Appeals did not unreasonably apply Strickland
in holding that Smith failed to demonstrate prejudice resulting from his trial counsel’s
failure to perform an essential duty. As such, I must recommend that Smith’s petition be
denied.
IV.
ORDER AND RECOMMENDATION
Based on the foregoing, I respectfully recommend that Smith’s petition pursuant
to 28 U.S.C. § 2254 (Doc. No. 7) be denied. Objections to this recommendation in
accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b) must be filed within
fourteen (14) days of the service of a copy of this Report and Recommendation.
Objections must specify the parts of the Report and Recommendation to which objections
are made, as well as the parts of the record forming the basis for the objections. See
Fed. R. Civ. P. 72. Failure to object to the Report and Recommendation waives the
right to de novo review by the district court of any portion of the Report and
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Recommendation as well as the right to appeal from the findings of fact contained therein.
United States v. Wise, 588 F.3d 531, 537 (8th Cir. 2009).
IT IS SO ORDERED.
DATED this 7th day of November, 2014.
________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
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