Smith v. McKinney
Filing
90
ORDER Accepting 88 Report and Recommendation. 7 Pro Se Petition for Writ of Habeas Corpus filed by Lee Andrew Smith is denied. Certificate of appealability also denied. Accordingly, the Clerk shall enter judgment in favor of the Respondent and against Petitioner. Signed by Judge Mark W Bennett on 3/31/2015. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
LEE ANDREW SMITH,
No. C 11-3010-MWB
Petitioner,
vs.
JAMES MCKINNEY,
Respondent.
MEMORANDUM OPINION AND
ORDER REGARDING OBJECTIONS
TO MAGISTRATE JUDGE’S
RECOMMENDED DISPOSITION OF
STATE PRISONER’S HABEAS
PETITION
___________________________
TABLE OF CONTENTS
I.
INTRODUCTION AND BACKGROUND .............................................. 3
A.
Factual Background ............................................................... 3
B.
Procedural Background ........................................................... 5
1.
State proceedings ........................................................... 5
a.
Direct Appeal ....................................................... 8
b.
Postconviction Relief Proceedings .............................. 9
i.
Iowa District Court Decision ............................ 9
ii.
Iowa Appellate Court Decision ........................ 10
2.
Federal Proceedings ..................................................... 15
a.
Smith’s § 2254 Petitions ........................................ 15
b.
The Report And Recommendation ............................ 18
II.
LEGAL ANALYSIS ...................................................................... 23
A.
Review Of A Report And Recommendation.................................. 23
B.
Federal Habeas Relief ........................................................... 26
1.
“Exhausted” and “adjudicated” claims .............................. 28
a.
The “Exhaustion” and “adjudication”
requirements ...................................................... 28
b.
Limitations on relief on “exhausted” claims ............... 29
2.
The § 2254(d)(1) standards ............................................. 31
The “contrary to” clause ....................................... 31
The “unreasonable application” clause ..................... 31
The effect of § 2254(d)(1) deficiencies in the
state court decision .............................................. 33
3.
The § 2254(d)(2) standard .............................................. 34
4.
De novo review of issues not reached by the state
court ........................................................................ 35
“Clearly Established Federal Law” Regarding Ineffective
Assistance Of Counsel ........................................................... 35
1.
The Strickland Standard ................................................ 36
2.
Strickland’s “deficient performance” prong ........................ 37
3.
Strickland’s “prejudice” prong ........................................ 39
4.
Smith’s Objections ....................................................... 40
5.
Analysis .................................................................... 41
a.
b.
c.
C.
III.
CERTIFICATE OF APPEALABILITY ............................................... 54
IV.
CONCLUSION ............................................................................ 55
Petitioner Lee Andrew Smith’s (Smith) Petition For Writ of Habeas Corpus
Under 28 U.S.C. § 2254 is before me pursuant to a Report and Recommendation
(R&R) of United States Magistrate Judge Leonard T. Strand recommending that the
petition be denied. Judge Strand’s R&R was filed on November 7, 2014 (docket no.
88). Smith filed objections to the R&R on November 14, 2014 (docket no. 89). The
Respondent, James McKinney, the warden of Fort Dodge Correctional Facility, did not
file any objections to the R&R.
In this Memorandum Opinion and Order, I must
conduct a de novo review of those parts of Judge Strand’s R&R to which the respondent
has objected.
In doing so, I consider whether to accept, reject, or modify Judge
Strand’s R&R.
2
I.
INTRODUCTION AND BACKGROUND
A.
Factual Background
Absent rebuttal by clear and convincing evidence, I must presume that any
factual determinations made by a state court in a state prisoner’s criminal and
postconviction relief cases 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 to be
incorrect by clear and convincing evidence). The Iowa Court of Appeals summarized
the facts underlying Smith’s conviction, as follows:
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 firstdegree 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.
3
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 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 first-degree 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
4
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 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, *1-*2 (Iowa Ct. App. 2010)
(unpublished table decision). In further summarizing the procedural history below, I
refer to the record, the applicable decisions of the Iowa district courts, Iowa Court of
Appeals, and Iowa Supreme Court, Judge Strand’s R&R, and the parties’ briefs. In
order to provide a complete picture of the procedural history, some of the facts
discussed above are repeated below. I will also discuss additional facts where relevant.
B.
1.
Procedural Background
State proceedings
On April 13, 2006, the State charged Smith with first-degree burglary (Count I);
sexual abuse in the third-degree as a habitual offender (Count II); and domestic abuse
5
assault causing injury as a habitual offender (Count III).1 Prior to the first and second
days of trial, Smith rejected the State’s offered plea bargains, which would have
resulted in a twenty-five year prison term.2 Tr. at 53. The parties proceeded to trial,
and Smith was represented by Andrea Dryer (Dryer). Id. 55–56.
On June 27, 2006, Smith’s trial commenced, and a jury was selected. The
following morning, on June 28, 2006, the presentation of evidence began. The first
witness to testify was the victim of the crimes Smith committed, Murna Wynter. Id.
56–57. According to the record, Smith decided he wanted to plead guilty during the
victim’s testimony. Id. 121–122. More specifically, he “whispered loudly [to Dryer]
that he ‘wanted this to stop’ and didn’t want the victim to ‘go through this anymore.’”
Smith, 2010 WL 4867384 at *1. A ten minute recess was held prior to the end of
1
In order for the reader to better understand the factual context in which this
case arose, and why Smith’s victim’s testimony arguably compelled Smith to plead
guilty, I retell some of the egregious facts surrounding the crimes that Smith
committed. Here are the facts: The victim, Murna Wynter, previously lived with the
petitioner, Smith. Respondent’s Merits Brief (docket no. 86), 3. When Wynter moved
away from Smith into her own home, Smith entered Wynter’s new home, without
permission, one morning at 2:00 a.m. Id. at 4. He was armed with a knife. Id.; see
Transcript of Proceedings, Respondent’s Exhibit 1(c) (Tr.), at 90. Smith “entered her
bedroom,” “turned on a light,” appeared “to be more ‘harsh,’” and “accused Wynter
of being with another man.” Respondent’s Merits Brief at 4 (quoting Tr. 82).
Subsequently, Smith physically and sexually assaulted Wynter—e.g., Smith punched
Wynter several times in the head and body, restrained Wynter inside her own home as
she tried to escape twice, and forced Wynter to perform sexual acts on him—and Smith
stole money from Wynter’s purse. Id. at 4–5. The police later took photos of the
injuries to Wynter’s “face, arms, hands, and back.” Id. at 6. Smith’s counsel testified
at Smith’s postconviction relief hearing on September 28, 2009 (as discussed below),
and she explained that “Smith had a lengthy criminal history involving serious crimes
and was not a novice to the system.” Smith, 2010 WL 4867384 at *6.
2
The state prosecutor extended the plea offer until Wynter, Smith’s victim, took
the stand on the second day of trial in order to “spare Miss Wynter the embarrassment
of going through this trial.” Tr. at 53.
6
Wynter’s direct examination. After that recess, Smith entered pleas of guilty to the
three charged offenses, and he requested immediate sentencing by the district court. At
that time, Smith’s counsel informed the court that part of the plea deal was that “there
would be no first degree kidnapping charge filed.” Tr. 123.
By requesting immediate sentencing, the district court advised Smith that he
waived his right to file a motion in arrest of judgment. Tr. at 133–134. The district
court accepted Smith’s guilty plea to all three counts, and Smith was sentenced that
same day.
Smith was sentenced to prison for twenty-five years on the burglary
conviction; fifteen years in prison on the sexual abuse as a habitual offender conviction;
and fifteen years in prison on the assault causing bodily injury as a habitual offender
conviction. Id. at 136–138. Smith’s sentences on Counts II and III were set to run
concurrent to each other but consecutive to the sentence on Count I. Thus, Smith was
sentenced to a total term of forty years imprisonment.
On October 31, 2006, Chief Judge Alan L. Pearson of the First Judicial District
issued an administrative order finding that Smith’s sentence did not comply with Iowa
Code § 903B.1.3 Accordingly, Chief Judge Pearson ordered the presiding judge, Judge
Stephen C. Clarke of the First Judicial District of Iowa, to “promptly review the case
with the parties and either enter a corrected sentence or schedule it for resentencing,
3
“Section 903B.1 requires that a person convicted of a Class C felony under
section 709, such as third-degree sexual abuse, be sentenced to a special lifetime parole
term.” Smith, 2010 WL 4867384 at *2 n.1. Here, Smith was not told he would be
subject to mandatory lifetime supervision under Iowa Code § 903B.1 during the district
court’s plea colloquy. Nor did the district court sentence Smith to the mandatory
lifetime supervision at his initial sentencing as required by law. Chief Judge Pearson’s
administrative order was filed “because of the newness of the section 903B.1 of the
Code and a practice in the First Judicial District wherein judges had not been informing
defendants of the applicability of 903B.1 in relevant cases that defendant and all other
similarly situated defendants were to be resentenced.” Ruling On Application For PostConviction Relief (docket no. 52-1), 12.
7
whichever is appropriate.” Respondent’s Merits Brief at 7 (quoting Order (10-31-06)).
The sentencing order was set aside and a hearing regarding the resentencing of Smith
was held on December 18, 2006. At that hearing, Smith requested that his guilty plea
be withdrawn. The district court continued the resentencing hearing until January 16,
2007.
On January 11, 2007, Smith filed a Combined Motion In Arrest Of Judgment
And Application To Withdraw Guilty Plea. Report at 6–7. Smith sought to withdraw
his guilty plea because he was not informed that he would be subject to the mandatory
lifetime supervision requirement of Iowa Code § 903B.1 due to the sex abuse
conviction. On March 27, 2007, Judge Stephen C. Clarke of the First Judicial District
of Iowa granted Smith a new trial on three bases: (1) Smith’s sentence was illegal as the
sentence did not include the mandatory lifetime supervision requirement of § 903B.1
and it could be corrected at any time; (2) Smith’s plea was unknowing because he was
not informed of a direct consequence of his plea—that is, the mandatory lifetime
supervision; and (3) Smith’s entire plea agreement was invalidated, not just the plea to
the sexual assault, because the plea was improper. See Order Granting New Trial
(docket no. 52 -1), 4–6; see also Smith, 2010 WL 4867384 at *3. The State appealed
the district court’s decision on April 13, 2007, to the Iowa Supreme Court. Id. at 8.
a.
Direct Appeal
On July 25, 2008, in an opinion authored by Justice David S. Wiggins, Iowa’s
Supreme Court reversed the district court’s decision. State v. Smith, 753 N.W.2d 562,
565 (Iowa 2008). Iowa’s highest court held that the district court erred and abused its
discretion by considering Smith’s motion in arrest of judgment. Id. at 564. This is
because “Smith’s voluntary wavier of his right to file a motion in arrest of judgment [at
his initial sentencing] continues to apply at the time of his resentencing.” Id. For that
reason, Iowa’s Supreme Court reversed the district court’s judgment granting Smith a
8
new trial and remanded Smith’s case for the sole purpose of resentencing him. Iowa’s
Supreme Court preserved Smith’s right to file an application for postconviction relief to
challenge his guilty plea. Id. at 565. On remand, the district court sentenced Smith to
forty years imprisonment and added the lifetime parole term required by Iowa Code
§ 903B.1. Smith’s filing of his postconviction relief application followed.
b.
Postconviction Relief Proceedings
i.
Iowa District Court Decision
On September 28, 2009, Smith filed a postconviction relief application in Black
Hawk County, Iowa.
In his application for postconviction relief, Smith made two
primary contentions as to why he received ineffective assistance of counsel at trial: (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
supervision under § 903B.1. See Ruling On Application For Post-Conviction Relief at
12–13; see also Smith, 2010 WL 4867384 at *2; Report at 7. An evidentiary hearing
was held during which Smith and Dryer testified.
The next day, Judge George L. Stigler for the First Judicial District of Iowa,
ruled on Smith’s application for postconviction relief. See Ruling On Application For
Post-Conviction Relief at 11–15. On the one hand, the district court rejected the claim
that Smith was coerced into pleading guilty. Id. at 14–15. “[Smith’s attorney] testified
that she at no time indicated a lack of faith in defendant’s case, nor did she say to him,
contrary as to defendant assertions, that he should plead guilty,” wrote the district
court. Id. at 14. Smith also indicated during his plea colloquy and sentencing that he
was not threatened or coerced to plead guilty.
Id.
The district court “reject[ed]
Mr. Smith’s credibility and [found] that his guilty pleas were freely, voluntarily and
intelligently made without any coercion of any type, by trial defense counsel or the
state.” Id.
9
On the other hand, the district court found in Smith’s favor on his other
ineffective-assistance-of-counsel claim because Smith’s counsel breached an essential
duty by not informing Smith that he faced mandatory lifetime parole. In the district
court’s view, there was also sufficient prejudice to require Smith’s plea to Count II to
be vacated:
The court is not able to accept the state’s argument that had
Mr. Smith been so informed, it would not have mattered and
he would have entered his guilty plea to Count II [sexual
abuse]. The court accepts Mr. 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.
Id. at 13; Smith, 2010 WL 4867384 at *3.
Based on the district court’s stated
rationale, it vacated Smith’s plea as to Count II. However, the district court declined to
vacate Smith’s guilty pleas and sentences on the other counts (Counts I and III) because
the section 903B.1 requirement only applies to the sexual abuse count (Count II). See
Ruling On Application For Post-Conviction Relief at 15. In closing, the district court
found that the State, if it so decided, “may retry defendant on Count II.” Id.
ii.
Iowa Appellate Court Decision
Smith appealed the district court’s decision arguing that, once the district court
found ineffective assistance of counsel, the district court should have vacated all the
convictions and sentences. Smith, 2010 WL 4867384 at *4. The State cross-appealed.
The State contended that Smith’s entire application should have been denied because
Smith did not establish prejudice, “i.e., that there was a reasonable probability he
would not have pled guilty had he been informed of the section 903B.1 sentence.”4 Id.
On November 24, 2010, the Iowa Court of Appeals issued its opinion on that appeal,
4
As Judge Strand correctly noted in his R&R, “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.” Report at 8.
10
and the opinion was authored by Justice, then Judge, Edward M. Mansfield.5 In that
opinion, the Iowa Court of Appeals agreed with the State. Thus, the appellate court
reversed the district court’s decision and affirmed Smith’s judgment and sentence in all
respects.
In reaching that decision, the appellate court reasoned, in pertinent part, as
follows:
It seems implausible to us that the lifetime special parole
term would have been a dealbreaker, had Smith been told
about it. Smith’s own testimony at the postconviction relief
hearing indicates his real concern had to do with the
possibility of being charged with first-degree kidnapping,
which would carry a lifetime sentence without parole[.]
Id. at *5.
The appellate court continued by quoting Smith’s testimony at his
postconviction relief hearing, which illustrates that his real concern was the possibility
of a lifetime sentence. Although Smith’s testimony at his postconviction relief hearing
is recited by the Iowa Court of Appeals and Judge Strand’s R&R, I include his
testimony here, again, for the reader’s ease of locating it:
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 [plead guilty] 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.
5
Justice Mansfield was subsequently appointed to the Iowa Supreme Court in
February of 2011.
11
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?
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 [sic] any life sentence so you were asking the
court to accept you [sic] 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.
12
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.; see also Report at 9–10.
Following the state appellate court’s quotations of Smith’s testimony, it
summarized Dryer’s testimony at the postconviction relief hearing. At that hearing,
Dryer disputed Smith’s allegation that she “misled” or “coerced” him to believe that
“he would be charged with and convicted of first-degree kidnapping.” Smith, 2010 WL
4867384 at *5. To the contrary, Dryer testified that “she told Smith she did not believe
the State would have a strong case for a kidnapping charge.” Id. at *6. Dryer further
testified that the State’s first witness’s testimony was “‘very believable.’”
Id.
According to Dryer, during the victim’s testimony, Smith “became more emotional”
and repeatedly insisted that he wanted the questioning of his victim, Wynter, to stop,
and he was “‘adamant’” about pleading guilty. Id.
After considering Smith’s and Dryer’s testimonies at the postconviction hearing,
the state appellate court reasoned that “[t]his record does not support a finding that the
section 903B.1 parole term would have altered Smith’s decision to plead guilty.” Id.
Rather, the appellate court continued: “Smith’s concern at the time was the years of
incarceration he would face.” Id. As he indicated at his guilty plea and postconviction
relief hearings, Smith was seeking to avoid a first-degree kidnapping charge that, if
proven, would carry a lifetime sentence of imprisonment without parole.
The appellate court took issue with the district court’s decision to accept Smith’s
testimony that if he was aware of § 903B.1’s applicability, he would not have pleaded
guilty to Count II.
In the words of the appellate court, “For one thing, Smith’s
testimony, quoted above, does not really say that.” Id. Also, the appellate court noted
13
that the district court gave far less credence to Smith’s testimony than Dryer’s
testimony at the postconviction relief hearing; the court “found Smith’s testimony ‘not
believable.’” Id. More importantly, the appellate court considered whether it would
have made a difference if Smith “unequivocally” asserted that he would not have
pleaded guilty if he were aware of the mandatory lifetime supervision requirement of
§ 903B.1:
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 selfserving 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.
In sum, based on the whole record, the state appellate court was unable to
conclude that “Smith would have rejected the plea bargain had he known of the
mandatory parole term.”
Id.
For that reason, Smith did not meet his burden of
proving he was prejudiced by ineffective assistance of counsel, and therefore, the
appellate court dismissed Smith’s application for postconviction relief. Id. at *7. In
reaching that conclusion, the appellate court did not need to reach Smith’s argument
that the district court should have vacated Smith’s convictions and sentences on his
other charges. Id. On February 2, 2011, the Iowa Supreme Court denied Smith’s
application for further review of the decision of the Iowa Court of Appeals. The Writ
of Procedendo was issued on February 14, 2011.
14
2.
Federal Proceedings
a.
Smith’s § 2254 Petitions
On June 28, 2011, Smith filed a Pro Se Petition For Writ of Habeas Corpus
(docket no. 7). On April 9, 2013, Smith filed a Brief In Support Of Petition For Writ
Of Habeas Corpus (docket no. 51). At that time, Smith was represented by Christopher
Cooklin (Cooklin). On July 15, 2013, Smith filed a pro se motion and requested the
appointment of a new attorney (docket no. 55). On July 16, 2013, Magistrate Judge
Strand filed an order granting Smith’s Pro Se Motion To Appoint New Attorney
(docket no. 56). On May 22, 2014, Chad Primmer (Primmer) filed a supplemental
memorandum, and in that memorandum, Primmer adopted Cooklin’s brief filed on
April 9, 2013, as it “appropriately briefed portions of Petitioner’s argument including
procedural history, legal standards for habeas relief and Smith’s exhaustion of state
remedies.” Petitioner’s Supplemental Memorandum In Support Of 2254 Application
(docket no. 85), 1.
As Judge Strand explained in his R&R, Smith makes two contentions in his
merits brief that he received ineffective assistance of counsel: he was not informed
about (1) the parole board’s process for determining parole, and (2) the mandatory
lifetime supervision requirement under section 903B.1.6
Report at 12 (citing to
Petitioner’s Supplemental Memorandum at 5); see also Brief In Support Of Petition For
Writ Of Habeas Corpus at 11. Therefore, Smith contends that his guilty plea as to all
three counts should be vacated “because he was denied his right to effective assistance
6
Judge Strand is also right in noting that Smith’s initial Pro Se Petition For Writ
Of Habeas Corpus included three separate grounds for relief. Pro Se Petition For Writ
Of Habeas Corpus at 3–5. However, Smith’s merits brief states in much clearer terms
the defendant’s bases for relief (docket nos. 51, 85), and, unlike the grounds in his
initial habeas petition (docket no. 7), the bases are not repetitive.
15
of counsel during all portions of his proceedings.”
Petitioner’s Supplemental
Memorandum at 5.
In furtherance of his argument that he received ineffective assistance of counsel,
Smith asserts that “[i]t has never been contested that Smith’s trial attorney did not
advise him of the lifetime supervision provision set forth in Iowa Code § 903B.1.” Id.
The gravamen of Smith’s contention is that I should find, “pursuant to Strickland v.
Washington, 466 U.S. 668 (1984), that his counsel failed in an essential duty and that
he suffered prejudice there from [sic].”7 Id. at 6. Smith requests that I “expand upon
Judge Stigler’s opinion that permitted [Smith’s] post-conviction under Iowa Law on
Count II be held applicable to all counts.” Id. Put differently, Smith seems to contend
that his entire plea agreement should be invalidated because Smith’s attorney failed to
advise him of the mandatory lifetime supervision requirement under § 903B.1. Smith
reiterates his allegation that, in hindsight, he “would have rejected the entire plea offer
had he been aware of the requirement of lifetime supervision under Iowa Code
§ 903B.1.” Id.
Next, Smith seeks to advance his argument by citing to a lengthy passage from a
dissenting opinion in State v. Carney, 584 N.W.2d 907 (Iowa 1998), an opinion in
which Judge Bruce M. Snell Jr. distinguished “collateral” from “direct” consequences
7
Prior to making this contention, Smith refers to two inapplicable United States
Supreme Court cases—i.e., Chaidez v. United States, 133 S. Ct. 1103 (2013), and
Padilla v. Kentucky, 130 S. Ct. 1473 (2010)—with the incorrect understanding that the
special sentence under § 903B.1 is a “collateral consequence.”
Petitioner’s
Supplemental Memorandum at 5–6. In reply, Respondent’s Merits Brief explains that
“[t]he petitioner’s argument concerning Chaidez, Padilla, and collateral consequences
is a red herring. The imposition of the special sentence under Iowa Code Chapter 903B
is not a collateral consequence.” Respondent’s Merits Brief at 28. Because I agree
with the Respondent that Iowa courts consider § 903B.1 as a “direct consequence” of a
conviction, which I address more fully below, I do not summarize Smith’s invalid
arguments here.
16
of a criminal conviction. Id. at 6–9. Smith also cited another long passage from the
same dissenting opinion because,8 Smith argued, Justice Snell “believed the Defendant
received ineffective assistance [sic] counsel in that matter[.]” Id. at 9–11. Without
drawing many parallels to the cases from which he quotes, or offering much in terms of
analysis, Smith turns to Williams v. Henderson, 451 F.Supp. 328, 333 (E.D.N.Y.
1981), where the District Court for the Eastern District of New York determined that a
“prosecutor’s misconduct made petitioner’s trial ‘so fundamentally unfair as to deny
him due process.’” Id. at 11. Smith attempts to analogize his case to Williams. Id.
Smith argues, “Carving Count II from the analysis cannot remove the fundamental
unfairness parasitic to an assumption that being advised of a lifetime of supervision
related to Count II would not have persuaded Petitioner Smith to change his mind and
reject the package plea offer.”
Id.
Furthering this argument, Smith asserts that
“[t]here is policy disfavoring fragmented consideration of habeas corpus claims.” Id.
(citing United States ex rel. Sullivan v. Cooper, 631 F.2d 14, 17 (3d Cir. 1980)).
Finally, Smith likens this case to non-binding authority arising out of the Ninth
Circuit, Riggs v. Fairman, 399 F.3d 1179 (9th Cir. 2005).9 In Riggs, the attorney
8
Smith’s counsel fills almost six pages of Smith’s Supplemental Memorandum
with quotations from the dissenting opinion in Carney, 584 N.W. 2d at 910–913. See
Petitioner’s Supplemental Memorandum at 6–11.
Moreover, most of Smith’s
Supplemental Memorandum is filled with extensive quotations to case law with little
analysis and few parallels to this case in furtherance of Smith’s claims.
9
Smith’s counsel fills almost three pages of Smith’s Supplemental Memorandum
with quotations from the opinion of the Ninth Circuit Court of Appeals in Riggs, 399
F.3d 1179. See Petitioner’s Supplemental Memorandum at 12–14. The opinion for
Riggs, 399 F.3d 1179, was filed on March 7, 2005, following which, on November 30,
2005, it was ordered that the “case be reheard by the en banc court pursuant to Circuit
Rule 35-3.” Riggs v. Fairman, 430 F.3d 1222 (9th Cir. 2005). That order provides as
follows: “The three-judge panel opinion shall not be cited as precedent by or to this
court or any district court of the Ninth Circuit, except to the extent adopted by the en
banc court.” Id. On April 14, 2006, another order was filed that “[p]ursuant to
17
representing a California habeas petitioner charged with shoplifting made several
“investigatory omissions.” Riggs, 399 F.3d at 1183. Based on the attorney’s lack of
knowledge as to her client’s criminal record, she advised “him that his maximum
exposure under California law was only nine years and that he should therefore reject
the state’s offer of a five-year prison term.” Id. In reality, the habeas petitioner’s
“actual exposure under California’s three strikes law was 25-years-to-life.” Id. For
these reasons, the Ninth Circuit Court of Appeals held that “[h]er omission fell below
an objective standard of reasonableness.” Id. As to the prejudice prong, the appellate
court held that the habeas petitioner “sufficiently demonstrated that counsel’s
ineffectiveness prejudiced him.” Id.
Smith argues that, similar to the habeas petitioner’s counsel in Riggs, his counsel
“failed to advise him that his plea agreement exposed him to a life punishment.”
Petitioner’s Supplemental Memorandum at 14. Smith concedes that he was exposed to
“lifetime supervision,” instead of “lifetime incarceration,” but he argues that his
sanction “still carried a significant loss of liberty for the remainder of his natural life.”
Id.
In light of the remedy set forth in Riggs, Smith contends that he “should be
permitted to return to the pre-plea stage of the prosecution against him.” Id. at 14–15.
He also concludes by reiterating that his Sixth Amendment right “was violated when his
trial counsel failed to advise him of a direct statutory consequence of his plea,” and his
plea, as to all three counts, should be set aside. Id. at 15.
b.
The Report And Recommendation
On November 7, 2014, Magistrate Judge Strand filed his Report And
Recommendation On Petition For Writ Of Habeas Corpus Pursuant To 28 U.S.C.
appellant’s notice filed March 21, 2006, Appellant Michael Riggs’ appeal is
DISMISSED pursuant to F.R.A.P. 42(b). Each party is to bear its own costs. The
certified copy of the order sent to the district court shall constitute the mandate.” Riggs
v. Fairman, No. CV–00–04266, 2006 WL 6903784 (9th Cir. April 14, 2006).
18
§ 2254. After surveying the record, the applicable standards for relief pursuant to
§ 2254, and the standards applicable to a constitutional claim of ineffective assistance of
counsel, Judge Strand analyzed the reasonableness of the determinations of the Iowa
Court of Appeals. He then recommended that I deny Smith’s petition. In his R&R,
Judge Strand considered and rejected Smith’s arguments that he received ineffective
assistance of counsel. Report at 16.
First, Judge Strand rejected Smith’s claim that his counsel provided ineffective
assistance by failing to advise Smith of the parole board’s requirements for determining
parole eligibility. Id. Judge Strand highlighted that Smith, in his initial brief in support
of his petition, “concedes that the first claim was ‘[n]ot presented to the Iowa state
courts.’” Report at 16 (quoting Brief In Support Of Petition For Writ Of Habeas
Corpus (docket no. 51)). Because Smith did not present this claim to the state court to
allow the state court to address the claim in the first instance, the federal court cannot
review that claim now. See Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996)
(“We will not review a procedurally defaulted habeas claim because ‘a habeas
petitioner who has failed to meet the State’s procedural requirements for presenting his
federal claims has deprived the state courts of an opportunity to address those claims in
the first instance.” (quoting Jones v. Jerrison, 20 F.3d 849, 853 (8th Cir. 1994)
(internal quotation and citation omitted))). Further, Judge Strand explained that Smith
failed to “make the showing that would be necessary to allow review of the first claim
despite this defect.”10 Id. For those reasons, Judge Strand found that Smith’s first
10
In making this finding, based on his articulation of the applicable legal
standards, Judge Strand suggested that Smith offers no excuse as to why he failed to
raise his initial claim in state court, and he does not demonstrate prejudice as a result of
the default, or that a fundamental miscarriage of justice occurred. Report at 15–16; see
also 28 U.S.C. § 2254(b)(1); Abdullah, 75 F.3d at 411; Coleman v. Thompson, 501
U.S. 722, 750 (1991) (“We now make it explicit: In all cases in which a state prisoner
19
claim “cannot properly be considered in determining whether Smith is entitled to a writ
of habeas corpus” because that claim was procedurally barred.
Id.
In a footnote
subsequent to that finding, Judge Strand went so far as to conclude that, even if Smith’s
claim could be considered, it would fail on its merits for the reasons provided by the
Respondent. Id. (citing Respondent’s Merits Brief at 16–22).
Second, Judge Strand rejected Smith’s claim that his counsel provided ineffective
assistance by failing to inform him of the mandatory lifetime parole requirement under
§ 903B.1.11 Report at 18–20. Distinct from Smith’s first claim, however, Judge Strand
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.”). Agreeing with Judge Strand, I limit my
analysis below to Smith’s second claim that his trial counsel was ineffective because
federal habeas review of Smith’s first claim is barred. See Report at 16; see also
Respondent’s Merits Brief at 13–22. Moreover, as Smith concedes, Smith’s claim as to
his eligibility for parole was not raised in the Iowa state courts. Brief In Support Of
Petition For Writ Of Habeas Corpus at 11. Nor was the claim raised in Smith’s
petition for a writ of habeas corpus. However, as Judge Strand pointed out, the
Respondent “concede[d] that Smith exhausted the available state remedies regarding his
claim based on counsel’s failure to inform him of the mandatory lifetime parole
requirement.” Report at 16 (citing Respondent’s Merits Brief at 15–16).
11
Although not cited to by Judge Strand, the Respondent, or Smith’s counsel, I
find Harkins v. Mathes, No. 10–CV–77, 2013 WL 214255 (N.D. Iowa Jan. 18, 2013),
a well-crafted and persuasive opinion by my colleague, Chief Judge Linda R. Reade, of
the Northern District of Iowa, worth referencing here. Aside from Judge Strand’s
R&R, Harkins is the only other federal court case that cites to Iowa Code section
903B.1. In Harkins, the habeas petitioner argued that he was entitled to habeas corpus
relief because his trial counsel was ineffective for: (1) “failing to advise him that he
would be subject to a special sentence under Iowa Code section 903B.1 if convicted of
third-degree sexual abuse” and (2) “‘erroneously telling [the habeas petitioner] that
DNA testing had confirmed he was a donor of [male] ejaculate recovered from [the]
victim.’” Harkins, 2013 WL 214255, at *6 (emphasis added). Both the Iowa district
and appellate courts determined that, while the habeas petitioner’s trial counsel did not
20
noted that the “Respondent concedes that Smith exhausted the available state
remedies[,]” and thus, Smith “is entitled to have the merits of that claim considered.”
Id. at 16. Next, Judge Strand recited the applicable two-part test set forth in Strickland
v. Washington, 466 U.S. 668, in order to challenge a guilty plea based on ineffective
assistance of counsel: “[T]he petitioner must show (1) deficiency, that is, counsel’s
representation fell below an 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 16–17 (citing Hill v.
Lockhart, 474 U.S. 52, 57 (1985)). I turn to review Judge Strand’s findings as to each
prong of the Strickland test.
Regarding the first prong, Judge Strand agreed with the Iowa Court of Appeals
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. at 18.
Judge Strand noted that it was unclear from Respondent’s brief whether Respondent
contends that the Iowa Court of Appeals erred in this regard.
Judge Strand then
adopted the appellate court’s “finding that Smith’s trial counsel performed deficiently.”
Id. at 19.
Therefore, by not advising Smith of the mandatory lifetime parole
requirement accompanying Count II of Smith’s plea agreement, Judge Strand found that
Smith’s counsel “failed to perform an essential duty.” Id.
inform the petitioner about the special sentence, the petitioner “was not prejudiced by
this error.” Id. at *7. Unlike this case, the habeas petitioner in Harkins did not raise
the claim that his trial counsel failed to advise him of the special sentencing under Iowa
Code section 903B.1 when seeking further review of the state court determinations. Id.
Thus, the habeas petitioner did not exhaust all of the available state remedies. For that
reason, Chief Judge Reade wrote, “[T]he court need not determine whether the Iowa
Court of Appeals’ decision was either contrary to or involved an unreasonable
application of federal law.” Id. Nor did the court need to “assess whether the factual
determinations underlying the decision were unreasonable in light of the evidence.” Id.
21
With regard to the second prong, Judge Strand held that “Smith failed to
demonstrate prejudice resulting from his trial counsel’s failure to perform an essential
duty.” Id. at 20. In reaching that holding, Judge Strand reasoned that the Iowa Court
of Appeals applied the correct standard—i.e., “Smith was required to demonstrate ‘a
reasonable probability he would not have pled guilty had he been informed of the
section 903B.1 sentence’”—and based on that standard, the appellate court determined
that Smith did not make that showing. Id. at 19 (quoting Smith, 2010 WL 4867384 at
*4). The appellate court noted that Smith’s testimony illustrated that “his first concern,
and primary reason for pleading guilty, was to avoid receiving a life prison sentence for
a kidnapping charge.” Id. (citing Smith, 2010 WL 4867384 at *5). Judge Strand
stressed that the appellate court was convinced that “‘the 903B.1 special parole term
was, at most, a sidelight, introduced only on leading questioning by counsel.’” Id.
(quoting Smith, 2010 WL 4867384 at *6).
After reiterating that federal courts must presume that any factual determinations
made by state courts are correct, Judge Strand noted that Smith failed to present “clear
and convincing evidence in the record to rebut this presumption.” Id. Smith’s “selfserving, conclusory argument” that he would not have pled guilty, but for his counsel
not properly advising him, was, according to Judge Strand, insufficient to overcome the
finding of the Iowa Court of Appeals. Id. at 20. Because Smith failed to show that the
Iowa Court of Appeals applied the Strickland standard unreasonably by “holding that
Smith failed to demonstrate prejudice resulting from his trial counsel’s failure to
perform an essential duty,” Judge Strand recommended that Smith’s habeas petition be
denied. Id.
22
II.
A.
LEGAL ANALYSIS
Review Of A Report And Recommendation
Before considering whether or not to accept Judge Strand’s Report and
Recommendation, I will first set out my standard of review. The applicable statute
provides for de novo review by the district judge of a magistrate judge’s report and
recommendation, when objections are made, as follows:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of
the court may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge. The judge may also receive further evidence or
recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1) (2006); see FED. R. CIV. P. 72(b) (stating identical
requirements). Thus, “[a]ny party that desires plenary consideration by the Article III
judge of any issue need only ask.” Thomas v. Arn, 474 U.S. 140, 154 (1985). The
United States Supreme Court has explained that, although the statute provides for
review when objections are made, the statutory standard does not preclude review by
the district court in other circumstances:
[W]hile the statute does not require the judge to review an
issue de novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the
request of a party, under a de novo or any other standard.
Thomas, 474 U.S. at 154. Thus, the specific standard of review may depend upon
whether or not a party has objected to portions of the report and recommendation. I
will explain what triggers each specific standard of review in a little more detail.
If a party files an objection to a magistrate judge’s report and recommendation,
the district court must “make a de novo determination of those portions of the report or
23
specified proposed findings or recommendations to which objection is made.”
U.S.C. § 636(b)(1) (emphasis added).
28
In most cases, to trigger de novo review,
“objections must be timely and specific.” Thompson v. Nix, 897 F.2d 356, 358-59 (8th
Cir. 1990).
However, the Eighth Circuit Court of Appeals has been willing to
“liberally construe[]” otherwise general pro se objections to require a de novo review
of all “alleged errors,” see Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995), and
has also been willing to conclude that general objections require “full de novo review”
if the record is concise, Belk, 15 F.3d at 815 (“Therefore, even had petitioner’s
objections lacked specificity, a de novo review would still have been appropriate given
such a concise record.”). When objections have been made, and the magistrate judge’s
report is based upon an evidentiary hearing, “‘the district court must, at a minimum,
listen to a tape recording or read a transcript of the evidentiary hearing.’” United
States v. Azure, 539 F.3d 904, 910 (8th Cir. 2008) (quoting Jones v. Pillow, 47 F.3d
251, 252 (8th Cir. 1995), in turn quoting Branch v. Martin, 886 F.2d 1043, 1046 (8th
Cir. 1989)). Judge Strand did not hold an evidentiary hearing on the motion, nor did
he consider oral arguments on the motion.
Instead, he considered only the parties’
written submissions, and I have done the same.
In the absence of an objection, the district court is not required “to give any
more consideration to the magistrate’s report than the court considers appropriate.”
Thomas, 474 U.S. at 150; see also Peretz v. United States, 501 U.S. 923, 939 (1991)
(stating that § 636(b)(1) “provide[s] for de novo review only when a party objected to
the magistrate’s findings or recommendations” (emphasis added)); United States v.
Ewing, 632 F.3d 412, 415 (8th Cir. 2011) (“By failing to file objections, Ewing waived
his right to de novo review [of a magistrate judge’s report and recommendation on a
suppression motion] by the district court.”). Indeed, Thomas suggests that no review at
24
all is required. Id. (“We are therefore not persuaded that [§ 636(b)(1)] requires some
lesser review by the district court when no objections are filed.”).
Nevertheless, a district court may also review de novo any issue in a magistrate
judge’s report and recommendation at any time. Id. at 154. This discretion to conduct
de novo review of any issue at any time makes sense, because the Eighth Circuit Court
of Appeals has “emphasized the necessity . . . of retention by the district court of
substantial control over the ultimate disposition of matters referred to a magistrate.”
Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994). Also, the Eighth Circuit Court of
Appeals has indicated that, at a minimum, a district court should review the portions of
a magistrate judge’s report and recommendation to which no objections have been made
under a “clearly erroneous” standard of review. See Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996) (noting that, when no objections are filed and the time for
filing objections has expired, “[the district court judge] would only have to review the
findings of the magistrate judge for clear error”); Taylor v. Farrier, 910 F.2d 518, 520
(8th Cir. 1990) (noting that the advisory committee’s note to FED. R. CIV. P. 72(b)
indicates “when no timely objection is filed the court need only satisfy itself that there
is no clear error on the face of the record”). Review for clear error, even when no
objection has been made, is also consistent with “retention by the district court of
substantial control over the ultimate disposition of matters referred to a magistrate.”
Belk, 15 F.3d at 815.
Although neither the Supreme Court nor the Eighth Circuit Court of Appeals
explained precisely what “clear error” review means in this context, in other contexts,
the Supreme Court has stated that the “foremost” principle under this standard of
review “is that ‘[a] finding is “clearly erroneous” when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.’” Anderson v. City of Bessemer City,
25
470 U.S. 564, 573 74 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948)). I will review Judge Strand’s R&R with these standards in mind.
B.
Federal Habeas Relief
Before reviewing Judge Strand’s R&R, I will first consider the standards for
federal habeas relief from a state conviction. I note that the United States Supreme
Court has recognized that “[t]here is no higher duty of a court, under our constitutional
system, than the careful processing and adjudication of petitions for writs of habeas
corpus, for it is in such proceedings that a person in custody charges that error, neglect,
or evil purpose has resulted in his unlawful confinement and that he is deprived of his
freedom contrary to law.” Harris v. Nelson, 394 U.S. 286, 292 (1969). Indeed,
“[h]abeas corpus is one of the precious heritages of Anglo-American civilization.” Fay
v. Noia, 372 U.S. 391, 441 (1963), overruled on other grounds, Wainwright v. Sykes,
433 U.S. 72 (1977); see also McClesky v. Zant, 499 U.S. 467, 496 (1991) (“The writ
of habeas corpus is one of the centerpieces of our liberties.”).12 Nevertheless, it was
not until 1867 that Congress extended federal habeas corpus to prisoners held in state
12
The Supreme Court has recognized that the power to issue a writ of habeas
corpus is not necessarily an unalloyed good:
“But the writ has potentialities for evil as well as for good.
Abuse of the writ may undermine the orderly administration
of justice and therefore weaken the forces of authority that
are essential for civilization.” Brown v. Allen, [ ] 344 U.S.
[443,] 512, 73 S. Ct., at 449 [(1953)] (opinion of
Frankfurter, J.).
McClesky, 499 U.S. at 498.
26
custody. See McClesky, 499 U.S. at 478.13 “[T]he leading purpose of federal habeas
review [in the case of a state prisoner] is to ‘ensur[e] that state courts conduct criminal
proceedings in accordance with the [United States] Constitution as interpreted at the
time of th[ose] proceedings.’” Graham v. Collins, 506 U.S. 561, 467 (1993) (quoting
Saffle v. Parks, 494 U.S. 484, 488 (1990)).
Notwithstanding its importance, I also note that the United States Supreme Court
has explained that “the writ of habeas corpus has historically been regarded as an
extraordinary remedy.” Brecht v. Abrahamson, 507 U.S. 619, 633 (1993). Thus,
various justices of the Supreme Court have cautioned that “upsetting the finality of
judgment should be countenanced only in rare instances.” O’Neal v. McAninch, 513
U.S. 432, 447 (1995) (Thomas, J., joined by Rehnquist, C.J., and Scalia, J.,
dissenting).
Furthermore, “Congress enacted the AEDPA [the Antiterrorism and
Effective Death Penalty Act of 1996] to reduce delays in the execution of state and
federal criminal sentences, particularly in capital cases, and to further the principles of
comity, finality, and federalism.”
See Woodford v. Garceau, 538 U.S. 202, 206
(2003) (internal quotation marks and citations omitted). Therefore, “[t]o obtain habeas
corpus relief from a federal court, a state prisoner must show that the challenged statecourt ruling rested on ‘an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.’” Metrish v. Lancaster, 133 S.
Ct. 1781, 1783 (2013) (quoting Harrington v. Richter, 131 S. Ct. 770, 787 (2011)).
In light of these concerns, as explained more fully, below, since the passage of
AEDPA, habeas review by the federal courts of a state court conviction and the state
courts’ denial of postconviction relief is limited and, at least ordinarily, deferential.
13
Some of the history of federal habeas relief, before and after it was extended
to state prisoners, is set out in Johnson v. United States, 860 F. Supp. 2d 663, 737 n.23
(N.D. Iowa 2012).
27
1.
“Exhausted” and “adjudicated” claims
a.
The “Exhaustion” and “adjudication” requirements
The ability of the federal courts to grant habeas relief to a state prisoner
depends, in the first instance, on whether or not the claim before the federal court has
been “exhausted” in the state courts—a requirement found in § 2254(b) long before the
AEDPA was enacted. As the Supreme Court explained four decades ago, “The rule of
exhaustion in federal habeas corpus actions is rooted in considerations of federal-state
comity.” Preiser v. Rodriguez, 411 U.S. 475, 491 (1973).
More specifically, the AEDPA provides that federal habeas relief cannot be
granted to a person in state custody, unless it appears that “the applicant has exhausted
the remedies available in the courts of the State,” or “there is an absence of available
State corrective process,” or “circumstances exist that render such process ineffective
to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). “[F]or purposes of
exhausting state remedies, a claim for relief in habeas corpus [in the state court] must
include reference to a specific federal constitutional guarantee, as well as a statement of
the facts that entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 16263 (1996) (citing this rule as the holding of Picard v. Connor, 404 U.S. 270 (1971)).
A federal court has the authority to deny relief on the merits on an unexhausted claim,
see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State.”), but it cannot grant relief on such a claim. Id. at
§ 2254(b)(1). At least theoretically, “once a state prisoner arrives in federal court with
his petition for habeas corpus [asserting properly exhausted claims], the federal habeas
statute provides for a swift, flexible, and summary determination of his claim.”
Preiser, 411 U.S. at 495 (citing 28 U.S.C. § 2243, which provides for preliminary
28
review of a state prisoner’s petition to determine whether it appears from the
application that the petitioner is not entitled to relief).
As to the “adjudicated on the merits” requirement, the Supreme Court has held
“that, when a state court issues an order that summarily rejects without discussion all
the claims raised by a defendant, including a federal claim that the defendant
subsequently presses in a federal habeas proceeding, the federal habeas court must
presume (subject to rebuttal) that the federal claim was adjudicated on the merits.”
Johnson, 1333 S. Ct. at 1091 (emphasis in the original) (citing Harrington v. Richter,
131 S. Ct. 770 (2011)). Similarly, “when a defendant convicted in state court attempts
to raise a federal claim, either on direct appeal or in a collateral state proceeding, and a
state court rules against the defendant and issues an opinion that addresses some issues
but does not expressly address the federal claim in question,” the Supreme Court has
held “that the federal claim at issue . . . must be presumed to have been adjudicated on
the merits by the [state] courts,” and that, if the presumption is not adequately rebutted,
“the restrictive standard of review set out in § 2254(d)(2) consequently applies.” Id. at
1091-92.
b.
Limitations on relief on “exhausted” claims
If a claim is “exhausted,” then the ability of a federal court to grant habeas relief
depends on the nature of the alleged error by the state courts. As the Supreme Court
explained, “One of the methods Congress used to advance the[ ] objectives [of
AEDPA] was the adoption of an amended 28 U.S.C. § 2254(d),” which “places ‘new
constraint[s] on the power of a federal habeas court to grant a state prisoner’s
application for a writ of habeas corpus with respect to claims adjudicated on the merits
in state court.’” Woodford, 538 U.S. at 206 (quoting Williams v. Taylor, 529 U.S.
362, 412 (2000)). “[Supreme Court] cases make clear that AEDPA in general and
29
§ 2254(d) in particular focus in large measure on revising the standards used for
evaluating the merits of a habeas application.” Id.
Specifically, as the Supreme Court more recently explained, the power of the
federal court to grant relief to a person in state custody on a properly exhausted claim is
limited, as follows:
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) restricts the circumstances under which a
federal habeas court may grant relief to a state prisoner
whose claim has already been “adjudicated on the merits in
State court.” 28 U.S.C. § 2254(d). Specifically, if a claim
has been “adjudicated on the merits in State court,” a
federal habeas court may not grant relief 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
“(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.”
Ibid.
Because the requirements of § 2254(d) are difficult to meet,
it is important whether a federal claim was “adjudicated on
the merits in State court.”
Johnson v. Williams, 133 S. Ct. 1088, 1091 (2013). This is a “difficult to meet . . .
and highly deferential standard.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)
(internal quotation marks omitted). This highly deferential standard is appropriate,
“because the purpose of AEDPA is 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.” Greene v. Fisher, 132 S. Ct. 38, 43 (2011) (internal
quotation marks and citations omitted).
30
2.
The § 2254(d)(1) standards
a.
The “contrary to” clause
A state court decision is “contrary to” clearly established federal law, within the
meaning of § 2254(d)(1), “if the state court ‘applies a rule that contradicts the
governing law set forth in [Supreme Court] cases.’” Lafler v. Cooper, 132 S. Ct.
1376, 1390 (2012) (quoting Williams, 529 U.S. at 405)). “A state-court decision will
also be contrary to [the Supreme] Court’s clearly established precedent if the state court
confronts a set of facts that are materially indistinguishable from a decision of th[e]
Court and nevertheless arrives at a result different from [its] precedent.” Williams, 529
U.S. at 406. A federal court’s belief that it might have reached a different result is not
enough to show that the state court decision was “contrary to” established federal law,
where the state court applied the correct standard under established Supreme Court law.
Id.
b.
The “unreasonable application” clause
A state court’s decision involves an “unreasonable application” of federal law,
within the meaning of § 2254(d)(1), if “‘there was no reasonable basis for’ the [state
court’s] decision.” Cullen, 131 S. Ct. at 1402 (quoting Richter, 131 S. Ct. at 786).
Thus, “‘an unreasonable application of federal law is different from an incorrect
application of federal law.’” Richter, 131 S. Ct. at 785 (emphasis in the original)
(quoting Williams, 529 U.S. at 410).
[T]his Court has explained, “[E]valuating whether a rule
application was unreasonable requires considering the rule’s
specificity. The more general the rule, the more leeway
courts have in reaching outcomes in case-by-case
determinations.” [Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)]. “[I]t is not an unreasonable application of
clearly established Federal law for a state court to decline to
apply a specific legal rule that has not been squarely
31
established by this Court.” Knowles v. Mirzayance, 556
U.S. ––––, ––––, 129 S.Ct. 1411, 1413–14, 173 L.Ed.2d
251 (2009) (internal quotation marks omitted).
Richter, 131 S. Ct. at 786. “It bears repeating that even a strong case for relief does
not mean the state court’s contrary conclusion was unreasonable.” Id.
Nevertheless, where the rule itself is clearly established, the Supreme Court has
recognized two ways in which it can be unreasonably applied:
First, a state-court decision involves an unreasonable
application of this Court’s precedent if the state court
identifies the correct governing legal rule from this Court’s
cases but unreasonably applies it to the facts of the particular
state prisoner’s case. Second, a state-court decision also
involves an unreasonable application of this Court’s
precedent if the state court either unreasonably extends a
legal principle from our 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 (O’Connor, J., writing for the majority). The Supreme
Court recognized that there were “some problems of precision” with “unreasonable
application” as to extension or failure to extend a clearly established rule to a new
context:
Just as it is sometimes difficult to distinguish a mixed
question of law and fact from a question of fact, it will often
be difficult to identify separately those state-court decisions
that involve an unreasonable application of a legal principle
(or an unreasonable failure to apply a legal principle) to a
new context. Indeed, on the one hand, in some cases it will
be hard to distinguish a decision involving an unreasonable
extension of a legal principle from a decision involving an
unreasonable application of law to facts. On the other hand,
in many of the same cases it will also be difficult to
distinguish a decision involving an unreasonable extension of
a legal principle from a decision that “arrives at a conclusion
opposite to that reached by this Court on a question of law,”
32
supra, at 1519. Today’s case does not require us to decide
how such “extension of legal principle” cases should be
treated under § 2254(d)(1). For now it is sufficient to hold
that when a state-court decision unreasonably applies the
law of this Court to the facts of a prisoner’s case, a federal
court applying § 2254(d)(1) may conclude that the statecourt decision falls within that provision’s “unreasonable
application” clause.
Williams, 529 U.S. at 408-09 (O’Connor, J., writing for the majority) (emphasis
added).
c.
The effect of § 2254(d)(1) deficiencies in the state court
decision
Even if a petitioner establishes that the state court’s determination was “contrary
to” or an “unreasonable application of” federal law, within the meaning of
§ 2254(d)(1), that determination does not, standing alone, entitle the petitioner to relief.
Rather, it only entitles the petitioner to de novo consideration by the federal court of his
or her underlying constitutional claim for postconviction or habeas relief.
See
Johnson, 133 S. Ct. at 1097 (“Even while leaving ‘primary responsibility’ for
adjudicating federal claims to the States, AEDPA permits de novo review in those rare
cases when a state court decides a federal claim in a way that is ‘contrary to’ clearly
established Supreme Court precedent.” (internal citations omitted)); Lafler, 132 S. Ct.
at 1390-91 (holding that, where the state court’s decision was “contrary to” clearly
established federal law, because it failed to apply the Strickland standards to an
ineffective assistance of counsel claim, the federal court “can determine the principles
necessary to grant relief” and apply them to the facts of the case); Richter, 131 S. Ct.
at 770 (stating that § 2254(d)(1)’s exception “permit[s] relitigation where the earlier
state decision resulted from an ‘unreasonable application of’ clearly established federal
law”); Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (stating that, when the state
court’s adjudication was “contrary to” Federal law, within the meaning of
33
§ 2254(d)(1), “[a] federal court must then resolve the claim without the deference
AEDPA otherwise requires”); Wiggins v. Smith, 539 U.S. 510, 534 (2003) (performing
the analysis required under Strickland’s “prejudice” prong without deferring to the state
court’s decision, because the state court’s resolution of Strickland’s “deficient
performance” prong involved an “unreasonable application” of federal law, and the
state court had considered the “deficient performance” prong dispositive).
3.
The § 2254(d)(2) standard
Just as the “contrary to” and “unreasonable application of” clauses of
§ 2254(d)(1) have “independent meaning,” see Williams, 529 U.S. at 405, the
“unreasonable
determination”
clause
of
§ 2254(d)(2)
also
involves
separate
considerations, related not to established federal law, but to sufficiency of the evidence.
Section 2254(d)(2) provides for relief from a state court denial of postconviction relief,
if the state court proceedings “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.” Again, “[t]he 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 threshold.” Schriro v. Landrigan, 550 U.S.
465, 473 (2007) (applying this question to both the “unreasonable application” clause in
§ 2254(d)(1) and the “unreasonable determination” clause in § 2254(d)(2)). Thus, the
federal court must “presume the [state] court’s factual findings to be sound unless [the
petitioner] rebuts the ‘presumption of correctness by clear and convincing evidence.’”
Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting 28 U.S.C. § 2254(e)(1)). “The
standard is demanding but not insatiable; as [the Court] said . . . , ‘[d]eference does not
by definition preclude relief.’” Id. (quoting its prior decision in the same case, MillerEl v. Cockrell, 537 U.S. 322, 340 (2003)).
34
4.
De novo review of issues not reached by the state court
A federal court may also review de novo an element of a state prisoner’s
constitutional claim that the state court did not reach at all, because the state court
found another element to be dispositive of the prisoner’s claim.
See Porter v.
McCuollum, 558 U.S. 30, 38 (2009) (stating, “Because the state court did not decide
whether Porter’s counsel was deficient, we review this element of Porter’s Strickland
claim de novo,” and also finding that the state court’s determination that there was no
prejudice was an unreasonable application of Strickland (emphasis added)); Cone v.
Bell, 556 U.S. 449, 472 (2009) (reviewing de novo the state prisoner’s Brady claim,
because the state courts did not reach the merits of that claim); Rompilla v. Beard, 545
U.S. 374, 390 (2005) (“Because the state courts found the representation adequate, they
never reached the issue of prejudice, App. 265, 272–273, and so we examine this
element of the Strickland claim de novo.” (emphasis added)); Wiggins, 539 U.S. at 534
(“In assessing prejudice, we reweigh the evidence in aggravation against the totality of
available mitigating evidence. In this case, our review is not circumscribed by a state
court conclusion with respect to prejudice, as neither of the state courts below reached
this prong of the Strickland analysis.”).
C.
“Clearly Established Federal Law” Regarding
Ineffective Assistance Of Counsel
Smith’s objections to Judge Strand’s R&R all relate to Judge Strand’s analysis of
the state appellate court’s disposition of his constitutional claim of ineffective assistance
of counsel.
Before considering these objections, I must first “identify the ‘clearly
established Federal law, as determined by the Supreme Court of the United States’ that
governs the habeas petitioner’s claims.” Marshall, ___ U.S. at ___, 133 S. Ct. at 1449
(explaining that this is the starting point for cases subject to § 2254(d)(1)); Williams,
529 U.S. at 412 (same); Knowles, 556 U.S. at 122 (same).
35
1.
The Strickland Standard
The Supreme Court has explained that “[t]he right to counsel is the right to
effective assistance of counsel.” Missouri v. Frye, ___ U.S. ___, ___, 132 S. Ct.
1399, 1404 (2012) (citing Strickland, 466 U.S. at 686). In the context of a claim of
ineffective assistance of counsel, the Supreme Court has concluded that “the rule set
forth in Strickland qualifies as ‘clearly established Federal law, as determined by the
Supreme Court of the United States.’” Williams, 529 U.S. at 391. More specifically,
“[t]o prevail on [an ineffective assistance of counsel] claim, [the petitioner] must meet
both the deficient performance and prejudice prongs of Strickland, 466 U.S. at 686,
104 S. Ct. 2052.” Wong v. Belmontes, 558 U.S. 15, 16 (2009) (per curiam). The
Supreme Court has explained that
“‘[s]urmounting Strickland’s high bar is never an easy
task.’” Richter, supra, at ––––, 131 S. Ct., at 788 (quoting
Padilla v. Kentucky, 559 U.S. ––––, ––––, 130 S. Ct. 1473,
1484, 176 L.Ed.2d 284, (2010)). The Strickland standard
must be applied with “scrupulous care.” Richter, supra, at –
–––, 131 S. Ct., at 788.
Cullen, 131 S. Ct. at 1408.
Although the Strickland analysis is “clearly established federal law,” and the
petitioner must prove both prongs of that analysis to prevail, the Supreme Court does
not necessarily require consideration of both prongs of the Strickland analysis in every
case, nor does it require that the prongs of the Strickland analysis be considered in a
specific order. As the Court explained in Strickland,
Although we have discussed the performance component of
an ineffectiveness claim prior to the prejudice component,
there is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in the same order
or even to address both components of the inquiry if the
defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel’s
36
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies. The object of an ineffectiveness claim is not to
grade counsel’s performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course
should be followed.
Strickland, 466 U.S. at 697 (emphasis added).14
I will consider the two prongs of the Strickland analysis in a little more detail,
before turning to analyze Smith’s objections to Judge Strand’s R&R.
2.
Strickland’s “deficient performance” prong
“The performance prong of Strickland requires a defendant to show ‘“that
counsel’s representation fell below an objective standard of reasonableness.”‘” Lafler,
132 S. Ct. at 1384 (quoting Hill, 474 U.S. at 57, in turn quoting Strickland, 466 U.S.
at 688); Richter, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 688). To put it
another way, “[t]he challenger’s burden is to show ‘that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment.’” Richter, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 687)).
14
Although the Court in Strickland found that it was only necessary to consider
the “prejudice” prong, so that it did not reach the “deficient performance” prong, the
Eighth Circuit Court of Appeals has repeatedly held that it need not consider the
“prejudice” prong, if it determines that there was no “deficient performance.” See,
e.g., Gianakos v. United States, 560 F.3d 817, 821 (8th Cir. 2009) (“‘We need not
inquire into the effectiveness of counsel, however, if we determine that no prejudice
resulted from counsel’s alleged deficiencies.” (quoting Hoon v. Iowa, 313 F.3d 1058,
1061 (8th Cir. 2002), in turn citing Strickland, 466 U.S. at 697)); Ringo v. Roper, 472
F.3d 1001, 1008 (8th Cir. 2007) (“Because we believe that the Missouri Supreme
Court did not unreasonably apply Strickland when it determined that counsel’s decision
not to call Dr. Draper fell within the wide range of reasonable professional assistance,
we need not consider whether counsel’s decision prejudiced Mr. Ringo’s case.”);
Osborne v. Purkett, 411 F.3d 911, 918 (8th Cir. 2005) (“Because Osborne did not
satisfy the performance test, we need not consider the prejudice test.”).
37
In evaluating counsel’s performance, the reviewing court must not overlook
“‘the constitutionally protected independence of counsel and . . . the wide latitude
counsel must have in making tactical decisions.’” Cullen, 131 S. Ct. at 1406 (quoting
Strickland, 466 U.S. at 589). Thus,
[b]eyond the general requirement of reasonableness,
“specific guidelines are not appropriate.” [Strickland, 466
U.S.], at 688, 104 S. Ct. 2052. “No particular set of
detailed rules for counsel’s conduct can satisfactorily take
account of the variety of circumstances faced by defense
counsel or the range of legitimate decisions ....” Id., at 688–
689, 104 S. Ct. 2052. Strickland itself rejected the notion
that the same investigation will be required in every case.
Id., at 691, 104 S. Ct. 2052 (“[C]ounsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary” (emphasis
added)). It is “[r]are” that constitutionally competent
representation will require “any one technique or approach.”
Richter, 562 U.S., at ––––, 131 S. Ct., at 779.
Id. at 1406-07.
The Strickland standard of granting latitude to counsel also requires that
counsel’s decisions must be reviewed in the context in which they were made, without
“the distortions and imbalance that can inhere in a hindsight perspective.” Premo v.
Moore, 131 S. Ct. 733, 741 (2011); see also id. at 745 (reiterating that “hindsight
cannot suffice for relief when counsel’s choices were reasonable and legitimate based
on predictions of how the trial would proceed” (citing Richter, 131 S. Ct. 770));
Rompilla v. Beard, 545 U.S. 374, 381 (2005) (“In judging the defense’s investigation,
as in applying Strickland generally, hindsight is discounted by pegging adequacy to
‘counsel’s perspective at the time’ investigative decisions are made, 466 U.S., at 689,
104 S. Ct. 2052, and by giving a ‘heavy measure of deference to counsel’s judgments,’
id., at 691, 104 S. Ct. 2052.”). This is so, because “[u]nlike a later reviewing court,
38
the attorney observed the relevant proceedings, knew of materials outside the record,
and interacted with the client, with opposing counsel, and with the judge,” and because
“[i]t is ‘all too tempting’ to ‘second-guess counsel’s assistance after conviction or
adverse sentence.’” Richter, 131 S. Ct. at 788 (quoting Strickland, 466 U.S. at 689,
and also citing Bell v. Cone, 535 U.S. 685, 702 (2002), and Lockhart v. Fretwell, 506
U.S. 364, 372 (1993)). In short, “[t]he question is whether an attorney’s representation
amounted to incompetence under ‘prevailing professional norms,’ not whether it
deviated from best practices or most common custom.” Id. (quoting Strickland, 466
U.S. at 690).
Furthermore,
Strickland specifically commands that a court “must indulge
[the] strong presumption” that counsel “made all significant
decisions in the exercise of reasonable professional
judgment.” 466 U.S., at 689–690, 104 S. Ct. 2052. The
[reviewing court] [i]s required not simply to “give [the]
attorneys the benefit of the doubt,” but to affirmatively
entertain the range of possible “reasons [trial] counsel may
have had for proceeding as they did.”
Cullen, 131 S. Ct. at 1407 (internal citations to the lower court opinion omitted);
Richter, 131 S. Ct. at 787 (“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.” (quoting Strickland, 466 U.S. at 689)).
3.
Strickland’s “prejudice” prong
“To establish Strickland prejudice a defendant must ‘show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’”
Strickland, 466 U.S. at 694).
Lafler, 132 S. Ct. at 1384 (quoting
The Court has explained more specifically what a
“reasonable probability” means:
39
“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” [Strickland, 466
U.S. at 694]. That requires a “substantial,” not just
“conceivable,” likelihood of a different result. Richter, 562
U.S., at ––––, 131 S. Ct., at 791.
Cullen, 131 S. Ct. at 1403. Ultimately, a showing of “prejudice” requires counsel’s
errors to be “‘so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.’” Richter, 131 S. Ct. at 787-88 (quoting Strickland, 466 U.S. at 687).
4.
Smith’s Objections
I turn now to take up Smith’s three pages of objections to Judge Strand’s R&R.
See Petitioner’s Objections To Report And Recommendation On Petition For Writ Of
Habeas Corpus Pursuant To 28 U.S.C. § 2254 (docket no. 89). Smith’s objections
consist primarily of the same arguments presented in his Supplemental Memorandum In
Support Of 2254 Application. Smith agrees with Judge Strand’s R&R that Smith’s
“trial counsel’s performance was deficient for failing to advise him of the consequence
of lifetime parole pursuant to Iowa Code § 903B.1.”
Petitioner’s Objections at 1.
Smith takes issue with Judge Strand’s conclusion, however, that he did not meet his
burden of showing “prejudice under the Strickland standard.” Id.
According to Smith, Judge Strand and the Iowa Court of Appeals appear to
“parcel[] out the provisions applicable to Count II as not affecting Smith’s decision to
plead guilty.” Id. Smith argues that the mandatory lifetime parole—i.e., a matter of
significant consequence—would have factored into Smith’s decision as to whether to
accept a plea offer. Id. at 2. Also, a kidnapping charge is not supported by the record.
“As such, Smith’s testimony at the post-conviction trial that he would not have pled
guilty had he been aware of the lifetime parole provision is credible,” writes Smith. Id.
In addition, Smith, again, analogizes this case to State v. Carney, 584 N.W.2d
907 (Iowa 1998), and Riggs v. Fairman, 399 F.3d 1179 (9th Cir. 2005). In reference
40
to Carney, Smith admits that while the mandatory lifetime parole is “[a]lbeit a collateral
consequence by definition, it is a real and experienced consequence Smith has to deal
with for the remainder of his life.” Id. Therefore, in Smith’s words, “[i]n pragmatic
application, it is a direct consequence to Smith.” Id. In reference to Riggs, Smith
contends that this case, like Riggs, involves trial counsel that did not “adequately
describe potential consequences in the plea bargaining process.” Id. As in Riggs,
Smith argues that there was a constitutional violation in this case, which demonstrates
prejudice. Id.
Finally, Smith requests, without citing to any case law or other relevant authority
to support his request, that I determine that “once a parties’ Constitutional rights (here
the Sixth Amendment right to effective representation by counsel) concerning one
portion of their plea, or the plea bargaining process are violated, that the entire plea
process should be invalidated.” Id. at 2–3. If I were to reach a contrary ruling,
according to Smith, then that would be akin “to a position that only a portion of milk
can be spoiled or that a poisonous apple can only be partially harmful.” Id. at 3. In
sum, Smith requests that I find, contrary to the Iowa Court of Appeals and Judge
Strand, that he established both prongs of the Strickland test, and return him to his
“pre-plea portion of his State court proceeding.” Id.
5.
Analysis
At last, I turn to analyze the two-part Strickland v. Washington test, which,
based on Hill v. Lockhart, 474 U.S. 52 (1985), is applicable “to ineffective-assistanceof-counsel claims arising out of the plea process.” See Hill, 474 U.S. at 57; see also
Lafler, 132 S. Ct. at 1384 (noting that “[d]efendants have a Sixth Amendment right to
counsel, a right that extends to the plea bargaining process” (citing Frye, 132 S.Ct. at
1386–87))). In his R&R, Judge Strand construed Smith’s arguments in seeking federal
habeas relief as follows: “Smith asserts that by allowing his guilty plea to stand and not
41
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.” Report at 18. Upon review of the decision of the Iowa Court of Appeals, I
disagree with Smith’s arguments. Judge Strand was right in finding that the Iowa Court
of Appeals reasonably applied the standard set forth in Strickland v. Washington and
Hill v. Lockhart to address Smith’s ineffective-assistance-of-counsel claim.15
See
Report at 19–20; see also Respondent’s Merits Brief at 23. I turn to explain why the
application of the Strickland test by the Iowa Court of Appeals was not “contrary to” or
an “unreasonable application” of federal law. See Johnson, 133 S. Ct. at 1091.
In order to meet the first prong of the Strickland test, in the context of guilty
pleas, a defendant “‘must show that counsel’s representation fell below an objective
standard of reasonableness.’” Hill, 474 U.S. at 57 (quoting Strickland, 466 U.S. at
687–88). As Judge Strand rightly pointed out in his R&R, a defense attorney must
advise her client of the “direct consequences” of pleading guilty, but it is not necessary
to inform the defendant of all of the “indirect” or “collateral consequences.” Report at
17 (citing United States v. Degand, 614 F.2d 176, 177–78 (8th Cir. 1980); George v.
Black, 732 F.2d 108, 110 (8th Cir. 1984), in turn citing Brady v. United States, 397
15
Like the standard in Strickland, the Iowa Court of Appeals set forth this
standard for determining whether Smith’s ineffective-assistance-of-counsel claim had
merit: “To succeed on an ineffective-assistance-of-counsel claim, an applicant has the
burden to prove by a preponderance of the evidence that: ‘(1) counsel failed to perform
an essential duty; and (2) prejudice resulted.’” Smith, 2010 WL 4867384 at *4
(quoting Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010) (quoting State v. Maxwell,
743 N.W.2d 185, 195 (Iowa 2008)). Subsequently, the state appellate court applied the
correct standard, similar to the standard set forth in Hill, relating to the establishment
of prejudice in the context of a guilty plea: “[P]rejudice, i.e., that there was a
reasonable probability he would not have pled guilty had he been informed of the
section 903B.1 sentence.” See id. (citing State v. Hallock, 765 N.W.2d 598, 606 (Iowa
Ct. App. 2009); State v. Straw, 709 N.W.2d 128, 137 (Iowa 2008)).
42
U.S. 742, 755 (1970)).
The Eighth Circuit Court of Appeals has explained the
distinction between “direct” and “collateral” consequences:
“The distinction between ‘direct’ and ‘collateral’
consequences of a plea, while sometimes shaded in the
relevant decisions, turns on whether the result represents a
definite, immediate and largely automatic effect on the range
of the defendant's punishment.” Cuthrell v. Director,
Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.), cert.
denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241
(1973); United States v. Lambros, [544 F.2d 962, 966 (8th
Cir. 1976)].
George, 732 F.2d at 110.
Here, Smith was not informed of the special sentence mandated by Iowa Code
section 903B.1 due to his sex abuse conviction. That special sentence had a “definite,
immediate and largely automatic effect on the range of the defendant’s punishment.”
See id. (noting that civil commitment following incarceration “is not definite,
automatic, or immediate, especially when it is compared to a mandatory special parole
term. The latter is mandatory and must be included in the sentence imposed by the trial
judge; the former may be imposed by an entirely different body at a different time after
a different set of proceedings with a different burden of proof.”) (emphasis added); see
also Order Granting New Trial (referring to Smith’s special sentence of § 903B.1 as a
“direct consequence”).
Because Dryer failed to inform Smith of a “direct
consequence” of his plea, alert the court to her omission, or file a motion in arrest of
judgment, it was not unreasonable for the Iowa Court of Appeals to find, in agreement
with the state district court, that Dryer failed to perform an essential duty. Smith, 2010
WL 4867384 at *4.
In reaching the above decision, the Iowa Court of Appeals also noted, “The State
does not challenge the district court’s finding that Smith’s trial counsel failed to
perform an essential duty.” Id. Upon review of the parties’ briefs, Judge Strand
43
similarly noted that “[i]t 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.” Report at 19. To date, the Respondent has failed
to file any objections to Judge Strand’s R&R, or respond to Smith’s objections, to
clarify whether this issue is a point of contention.16
As I explained above, in the
absence of an objection from the Respondent as to one of Judge Strand’s findings in his
R&R, I am not required “to give any more consideration to the magistrate’s report”
than I deem “appropriate.” Thomas, 474 U.S. at 150.
In this case, I am convinced that Judge Strand’s finding as to the application of
the first Strickland prong by the Iowa Court of Appeals is not “clearly erroneous.” See
Grinder, 73 F.3d at 795 (8th Cir. 1996). Rather, in agreement with the Iowa Court of
Appeals and Judge Strand, I find that Smith’s counsel failed to perform an essential
duty by not advising Smith about this part of his sentence, which was not “the result of
reasonable professional judgment.” Report at 19; see also Smith, 2010 WL 4867384 at
*4; Strickland, 466 U.S. at 690 (“A convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of counsel that are alleged not to have
been the result of reasonable professional judgment.”). Therefore, the Iowa Court of
Appeals, in determining that Smith met the first prong of the Strickland test, did not
unreasonably apply Strickland, or apply a rule contrary to Strickland.
The “real issue here,” as Judge Strand noted, is whether Smith established
“prejudice,” or more precisely, whether “the Iowa Court of Appeals reasonably
16
The Respondent does recognizes that “[t]he Iowa [appellate] court ruled that
no part of the plea needed to be vacated on counsel's breach of an essential duty
because the petitioner had not proven that but for counsel’s error he would have gone to
trial and not pled guilty.” Respondent’s Merits Brief at 27 (citing Smith, 2010 WL
4867384 at 712) (emphasis added). Moreover, Respondent does not seem to take issue
with the Iowa appellate court’s finding as to the first prong of the Strickland test.
44
appl[ied] federal law in concluding that Smith failed to show prejudice[.]” Report at
19. To establish the “prejudice” prong, in the context of the plea process, Smith had to
show that there was “a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at
59. In analyzing whether Smith would have pleaded guilty, I must apply a subjective,
not objective, analysis. See Wanatee v. Ault, 259 F.3d 700, 704 (8th Cir. 2001).
There are several factors in the record that persuade me to find that the Iowa Court of
Appeals—in deciding that Smith did not meet his burden of proving the second prong of
the Strickland test—did not unreasonably apply Strickland or apply a rule contrary to
Strickland. See Craft v. Iowa, No. 13cv117, 2015 WL 1304435, at *3 (N.D. Iowa
March 23, 2015) (noting that, in order to show Strickland prejudice, the habeas
petitioner “bears the burden to prove he would not have pleaded guilty if counsel had
performed competently” (citing Hill, 474 U.S. at 52))).
First, as the Iowa Court of Appeals found, Smith was never concerned about the
years of parole he would face when he pleaded guilty, but rather, the “years of
incarceration he would face.” Smith, 2010 WL 4867384 at *6. Moreover, Smith’s
guilty plea was not based on a belief that he would not face parole; it was based on his
wish to avoid the possibility of a life sentence.17 If the State decided to bring a second
17
Smith’s testimony at his postconviction hearing indicates that he now seeks to
withdraw his plea of guilty and return to the negotiating stage because, in his view, the
State did not have a case for first-degree kidnapping. However, as the Eighth Circuit
Court of Appeals has explained: “‘A defendant is not entitled to withdraw his plea
merely because he discovers long after the plea has been accepted that his calculus
misapprehended the quality of the State’s case or the likely penalties attached to
alternative courses of action.’” Hale v. Lockhart, 903 F.2d 545, 551 (1990) (quoting
Brady, 397 U.S. at 757)). If Smith had gone to trial, he ran the risk of being sentenced
to life imprisonment, and the Iowa Court of Appeals determined that was the primary
reason Smith pleaded guilty. Smith, 2010 WL 4867384, at *6.
45
trial against Smith and charge him with first-degree kidnapping,18 and he were found
guilty of a first-degree kidnapping charge, he would have received “a lifetime sentence
without parole.”
Id. at *5 (emphasis added).
Smith never impressed on his trial
counsel, the court, or the prosecutor the importance of not being on parole to his
decision to plead guilty. Cf. Garmon v. Lockhart, 938 F.2d 120, 122 (8th Cir. 1991)
(agreeing with “the [federal] district court that in this case [the habeas petitioner]
impressed on his trial counsel the importance of parole eligibility to his decision to
plead guilty, and [the habeas petitioner] would have pleaded not guilty and insisted on
going to trial but for counsel’s erroneous advice,” and holding federal district court
properly found that habeas petitioner was denied effective assistance of counsel).
Based on the record, it seems Smith recognized the compelling case against him after
his victim began testifying, realized his chances for an acquittal were slim, and
therefore, chose to plead guilty. I also note that the prosecutor gave a persuasive
opening statement, which illustrated the strength of the evidence confronting Smith.
She referred to the witnesses that would testify and the taped conversations of Smith
with the victim, during which Smith allegedly apologized to and requested the victim to
“change her story.” Tr. at 45. All of which may have factored into Smith’s decision
to plead guilty during his victim’s direct examination.
18
Prior to trial, the state prosecutor indicated to Smith’s counsel, that based on
her deposition of the alleged victim, the “State very well may also pursue kidnapping
charges.” Tr. at 4. At that time, Smith’s counsel explained to Smith that “first degree
kidnapping could be a potential life sentence[.]” Id. Yet, the State never actually
charged Smith with first-degree kidnapping in the Information, which was recited at the
beginning of Smith’s trial, and it seems that the prosecutor only intended to bring a
first-degree kidnapping charge if Smith were found not guilty at his first trial. Id. at
35–36. To be clear, Smith pleaded guilty to the same three charges set forth in his
Information: first-degree burglary, sexual abuse in the third-degree, and domestic abuse
assault causing injury.
46
Second, what was said at Smith’s plea colloquy weighs against a finding that
Smith would have insisted on going to trial, even with the knowledge of the § 903B.1
special sentence. For example, at his plea colloquy, Smith testified in open court that
“he was pleading guilty in order to avoid a first-degree kidnapping charge and the
lifetime prison sentence that would result if he were convicted thereon.”19 Smith, 2010
19
More exactly, I reviewed Smith’s record, and here is the dialogue between
Smith and the state district court judge at his plea hearing:
THE COURT: And are you asking me to accept your plea
both because you are guilty and because of the plea offer
that you’ve received?
THE DEFENDANT: I don’t want no life sentence so I’m
asking you to accept my plea offer.
THE COURT: All right. And is that because of what you
have to gain by a plea and what you might have to lose if
you had continued with the trial?
THE DEFENDANT: If I had continued with the trial, if I
had gone to trial, you know, I’m still going to be facing a
life sentence, so what do I got to lose?
Tr. at 128. Later in the record, during Smith’s sentencing hearing, he said,
THE DEFENDANT: The reason I’m pleading guilty to this
incident here, you know, you know what I’m saying,
because, you know, Mrs. Fangman [an Assistant Black
Hawk County Attorney] is saying to me that if I had
participated with my trial and I had—if I was found not
guilty she was still going to file a first degree kidnapping on
me, you know. And, you know, I can’t see how I could win
either way, you know. If I beat my case, I’m still going to
be up against a life sentence, you know, so if I didn’t take
the plea bargain, you know, I can’t—it ain’t no way that I
could have came out—came out of this, you know.
47
WL 4867384 at *2. He twice indicated at his plea colloquy that he was pleading freely
and without any threats. Tr. at 123–124, 132. It is also noteworthy that, although the
trial court judge failed to advise Smith of the mandatory lifetime supervision under
§ 903B.1 during Smith’s plea colloquy, the trial judge did inform Smith that “he would
have to take a batterer’s education class, register as a sex offender, and pay a civil
penalty.” Smith, 2010 WL 4867384 at *2. Yet, Smith pleaded guilty anyway. The
additional sanctions of registering as a sex offender and paying the associated civil
THE COURT: Well, you could have gotten a not guilty on
the second trial. You understand that?
THE DEFENDANT: Yeah, but I’ve been down here since
April the 5th sitting in jail in front of $100,000 bond and on
my parole hold I got a no bond, so I’ve already been down
here for 90 days so I’ve got to sit over here another 90 days
on another trial. I’ll just go and get it over with.
THE COURT: You understand, however, that you’re giving
up your rights?
THE DEFENDANT: I know I gave those up.
THE COURT: All right.
THE DEFENDANT: But, you know, I’m a long ways from
being, you know, illiterate or anything, you know. I know
the repercussions behind this here incident and everything,
see.
THE COURT: All right. Anything else?
THE DEFENDANT: That’s it.
Tr. at 134–36.
48
penalty—both sanctions accompanied Smith’s decision to plead guilty to sexual abuse—
did not compel Smith to reject the plea offer and proceed to trial. Tr. at 137.
Third, as Judge Strand and the Iowa Court of Appeals also noted, Smith’s
testimony and Dryer’s testimony at Smith’s postconviction relief hearing on September
28, 2009, support the finding that Smith would still have pleaded guilty even if he was
properly advised. Report at 20; see also Smith, 2010 WL 4867384 at *5–*6. At the
risk of being repetitive, I refer to part of Smith’s testimony from his postconviction
relief hearing, which was discussed above:
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 want any life sentence so you were asking the
court to accept your plea offer?
A. Yeah. I do recall that. Anybody in their right mind
would accept the plea bargain if they thought they was going
to get a 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.
See Smith, 2010 WL 4867384 at *5; see also Report at 9–10. Smith’s self-serving
allegations that he would not have pleaded guilty contradict his testimony and his
counsel’s testimony at Smith’s postconviction relief hearing.20 Accordingly, like the
20
I disagree with Smith’s testimony at his postconviction relief hearing that the
State did not have a strong first-degree kidnapping case against him. Upon review of a
factually similar case, State v. Tryon, 431 N.W.2d 11 (Iowa App. 1988), it seems the
State did have sufficient evidence to establish that Smith committed first-degree
kidnapping based on Wynter’s testimony at his trial alone. As in this case, the
defendant in Tryon had a prior relationship with the victim—i.e., they had a friendship,
and the victim was married to the defendant’s friend—before the first-degree
kidnapping occurred. In Tryon, the defendant, like Smith, confined his victim in her
own home and subjected her to physical and sexual abuse. In analyzing whether there
was sufficient evidence presented in Tryon to generate a jury question on the issue of
49
Iowa Court of Appeals, I am unconvinced that “the lifetime special parole term would
have been a dealbreaker” for Smith. Smith, 2010 WL 4867384 at *5.
I now turn to consider Smith’s case citations and arguments in furtherance of his
objections to Judge Strand’s R&R. In reference to the dissenting opinion in Carney, as
noted above, Smith wrongly asserts that the special sentence under § 903B.1. is a
“collateral consequence by definition[.]” Petitioner’s Objections at 2. Smith’s reliance
on Carney is misplaced. As was gleaned by the Iowa Court of Appeals, in Smith’s
case, “A section 903B.2 sentence is not merely collateral, but is part of a sentence and,
confinement, the Iowa Court of Appeals cited to Iowa Code section 710.1, which
defines kidnapping. I refer to the current version of the statute here:
A person commits kidnapping when the person either
confines a person or removes a person from one place to
another, knowing that the person who confines or removes
the other person has neither the authority nor the consent of
the other to do so; provided, that to constitute kidnapping
the act must be accompanied by one or more of the
following:
...
3. The intent to inflict serious injury upon such person, or to
subject the person to a sexual abuse . . .
See IOWA CODE § 710.1 (emphasis added). Also, the appellate court cited Iowa Code
section 710.2, which defines kidnapping in the first-degree. I refer to the current
version of the statute here:
Kidnapping is kidnapping in the first degree when the person
kidnapped, as a consequence of the kidnapping, suffers
serious injury, or is intentionally subjected to torture or
sexual abuse.
See IOWA CODE § 710.2 (emphasis added). Like the defendant’s confinement of his
victim in Tryon, Smith prevented his victim from escaping or notifying others of her
abuse. Tryon, 431 N.W.2d at *14. Smith’s confinement of his victim facilitated his
sexual abuse, but had significant independence as it significantly increased the risk of
harm to the victim, lessened Smith’s risk of detection, and facilitated his escape. Id.
50
thus, the defendant must be informed of the provision before the court accepts a guilty
plea.” Smith, 2010 WL 4867384 at *4 (citing State v. Hallock, 765 N.W.2d 598, 605
(Iowa Ct. App. 2009) (emphasis added).
For further proof that the sentencing
provision in Iowa Code section 903B.1, like the sentencing provision in Iowa Code
section 903B.2, is a direct consequence, let me consider the specific statute at issue.
The subchapter for § 903B.1 is entitled “Special Sentencing,” the specific
provision is entitled “Special sentence--Class ‘B’ or class ‘C’ felonies,” and applying
the special sentence could lead to an additional term of imprisonment for Smith, which
is definite, immediate, and largely automatic in result on Smith’s range of punishment.
See Hallock, 765 N.W.2d at 605. Even the Respondent recognized that the special
sentence under § 903B.1 is not a “collateral consequence,” but rather a “direct
consequence of [Smith’s] conviction.” Respondent’s Merits Brief at 28. Therefore, as
indicated above, I find the special sentencing provision of § 903B.1 is a “direct
consequence” of Smith’s conviction and his counsel had a duty to inform him of it.
While my finding on this issue favors Smith, he failed to prove his ineffectiveassistance-of-counsel claim because he did not show how such lack of knowledge
constituted prejudice. Nor does the dissenting opinion in Carney, 584 N.W.2d 907, in
my judgment, add much weight to Smith’s claims. Indeed, Carney stands as negative
authority to Smith’s position: the majority’s opinion determined that counsel was not
ineffective for failing to inform the defendant of the collateral, not direct, consequence
of license revocation prior to pleading guilty. Carney, 584 N.W.2d at 910.
In addition, the facts of Riggs, another case relied upon by Smith, are markedly
distinct from the facts of this case.21 In Riggs, the Ninth Circuit Court of Appeals
21
If Smith were seeking to cite a more factually analogous case from the Ninth
Circuit, he needed to look no further than a case with his own surname in the caption—
Smith v. YLST, 47 F.3d 1176, 1995 WL 72329 (9th Cir. 1995) (unpublished op.). In
51
found that the performance of the petitioner’s counsel was deficient and that counsel’s
performance prejudiced the defendant. Riggs, 399 F.3d at 1183. However, unlike the
procedural history in this case, there was “no state determination addressing [the
petitioner’s] ineffective assistance of counsel claim,” and thus, the Ninth Circuit Court
of Appeals undertook an “‘independent review of the record.’” Id. at 1182. Also, in
Riggs, the petitioner’s counsel advised her client that he should reject the State’s offer
of a five-year prison term because he was only exposed, under California law, to nine
years in prison.
Id. at 1183.
In truth, the petitioner’s “actual exposure under
California’s three strikes law was 25-years-to-life.” Id. Thus, the Ninth Circuit Court
of Appeals found that the attorney’s investigatory omission “fell below an objective
standard of reasonableness.” Id. In addition, the appellate court concluded that the
petitioner “sufficiently demonstrated that counsel’s ineffectiveness prejudiced him.” Id.
This is because the petitioner “credibly testified that he would have accepted the fiveSmith, Smith’s trial counsel “never objected to the imposition of the life parole term,
never advised Smith about the significance of parole, and never informed Smith that
because of the variance in the parole term, Smith could withdraw his plea.” Smith,
1995 WL 72329, *1. Based on these errors, Smith decided to bring “a habeas action
alleging ineffective assistance of counsel.” Id. Smith argued that he was prejudiced by
his trial counsel’s ineffective assistance, which caused him to plead guilty instead of
proceeding to trial. Id. The Ninth Circuit Court of Appeals affirmed the district
court’s decision, finding that “Smith did not suffer any prejudice from trial counsel’s
ineffective assistance.” Id. (Because Smith was unable to show he suffered prejudice,
the Ninth Circuit Court of Appeals did not address the deficiency issue.) In reaching its
decision, the appellate court was persuaded by the fact that “Smith never discussed his
parole term with his attorney either before, during, or after his decision to plead
guilty,” and at Smith’s sentencing hearing “Smith made no comment or statement
regarding the lifetime parole term.” Id. at *2. Similar to the facts presented, here, the
only evidence Smith presented that he would have gone to trial was “his own
testimony.” Id. That testimony “was of little value because it was ‘self-serving and
subjective.’” Id. Also, like the habeas petitioner’s unreliable testimony in this case,
Smith’s testimony was “belied by the fact that he did not risk incurring five to ten more
years of prison time by going to trial and being convicted of first degree murder.” Id.
52
year plea sentence offered by the prosecution if he had known that his maximum
exposure was a sentence of 25-years-to-life.” Id.
I disagree with Smith’s argument that, like the habeas petitioner’s counsel in
Riggs, his counsel “failed to advise him that his plea agreement exposed him to a life
punishment.” Petitioner’s Supplemental Memorandum at 14. Smith is hard pressed to
make the case that a lifetime of supervision, here, is analogous to a lifetime of
imprisonment in Riggs, regardless of the liberties lost by supervision. The distinctions
between trial counsel’s failures in Riggs and trial counsel’s failures in this case are also
stark. Aside from Dryer’s failure to inform Smith of the special sentence pursuant to
§ 903B.1, nothing in the record suggests that Dryer made any other significant
investigatory omissions or failed to provide otherwise competent advice.
Additionally, unlike the petitioner in Riggs, the district court in this case found
that Smith was not a credible witness. As the Iowa Court of Appeals noted, “[T]he
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.”
Smith, 2010 WL 4867384, *6. Therefore, it was not unreasonable for the Iowa Court
of Appeals to discredit Smith’s self-serving allegation that he would not have pleaded
guilty if he were aware of the mandatory lifetime parole under § 903B.1.
For the reasons stated above, and in agreement with Judge Strand, I find that the
Iowa Court of Appeals did not unreasonably apply the second prong of Strickland, or
apply a rule contrary to Strickland, in order to find that Smith failed to established
prejudice. See Strickland, 466 U.S. at 700 (“Failure to make the required showing of
either deficient performance or sufficient prejudice defeats the ineffectiveness claim.”).
Nor did the state appellate court make an unreasonable determination of the facts based
on the evidence presented at the state court proceedings. See Johnson, 133 S. Ct. at
53
1091. Thus, the state appellate court rightly decided that Smith did not prevail on his
ineffective-assistance-of-counsel claim. Accordingly, I overrule Smith’s objections and
deny Smith’s application for postconviction relief.
III.
CERTIFICATE OF APPEALABILITY
Smith must make a substantial showing of the denial of a constitutional right in
order to be granted a certificate of appealability in this case. See Miller-El v. Cockrell,
537 U.S. 322 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir.
2000); Mills v. Norris, 187 F.3d 881, 882 n.1 (8th Cir. 1999); Carter v. Hopkins, 151
F.3d 872, 873-74 (8th Cir. 1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir. 1998);
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).
“A substantial showing is a
showing that issues are debatable among reasonable jurists, a court could resolve the
issues differently, or the issues deserve further proceedings.” Cox, 133 F.3d at 569.
Moreover, the United States Supreme Court reiterated in Miller-El v. Cockrell that
“‘[w]here a district court has rejected the constitutional claims on the merits, the
showing required to satisfy § 2253(c) is straightforward:
The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.’”
537 U.S. at 338 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)).
Here, I determine that Smith’s petition does not present questions of substance
for appellate review, and therefore, does not make the requisite showing to satisfy §
2253(c). See 28 U.S.C. § 2253(c)(2); FED. R. APP. P. 22(b). Accordingly, with
respect to Smith’s claims, I do not grant a certificate of appealability pursuant to 28
U.S.C. § 2253(c). Should Smith wish to seek further review of his petition, he may
request a certificate of appealability from a judge of the United States Court of Appeals
for the Eighth Circuit. See Tiedman v. Benson, 122 F.3d 518, 520-22 (8th Cir. 1997).
54
IV.
CONCLUSION
For the reasons discussed above, I accept Judge Strand’s Report and
Recommendation. Smith’s Petition for Writ of Habeas Corpus is denied. In addition, I
further order Smith’s certificate of appealability be denied. Accordingly, the Clerk
shall enter judgment in favor of the Respondent and against Smith.
IT IS SO ORDERED.
DATED this 31st day of March, 2015.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
55
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?