Opinion
Civil No. 00-5-ST
December 20, 2002
Dennis N. Balske, Assistant Federal Public Defender, Portland, OR, for Petitioner.
Hardy Myers, Attorney General, Douglas Y.S. Park, Assistant Attorney General, Salem, OR, for Respondent.
OPINION AND ORDER
Petitioner brings this action pursuant to 28 U.S.C. § 2254. Currently before the Court is petitioner's Amendment to Habeas Corpus Petition (docket #16). The parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with 28 U.S.C. § 636(c) (Doc. #39). For the reasons that follow, the court finds an evidentiary hearing is necessary to determine whether petitioner is entitled to relief.
BACKGROUND
In 1980, petitioner pleaded guilty to one count of Assault in the Second Degree. The charge arose when petitioner shot his wife with a gun in a domestic dispute. Originally charged with Attempted Murder and Assault in the Second Degree, petitioner pleaded guilty to the Assault in the Second Degree charge in exchange for dismissal of the Attempted Murder charge.
In 1997, petitioner consented to allow police officers to search his house for drugs. During the search, the officers found a variety of firearms under petitioner's bed, including an SKS folding stock semi-automatic assault rifle, and an M1 carbine rifle. Because of the 1980 felony conviction, petitioner was not allowed under state law to possess the weapons. As a result, he was charged with two counts of Felon in Possession of a Firearm.
Petitioner retained attorney Wallace Terry, who had represented him in the 1980 case, to represent him on the weapon charges. Petitioner accepted an offer from the state to plead guilty to one charge of Felon in Possession of a Firearm, and have the other charge dismissed. The Petition to Enter Plea of Guilty/No Contest signed by petitioner on August 13, 1997, described the maximum possible sentence as a "Guidelines Sentence 6E," which provides for a sentencing range of 10-12 months. In fact, because of the 1980 person-felony, the correct maximum possible sentence was in category 6D, with a lengthier sentencing range of 13-14 months.
Petitioner appeared at the change of plea hearing with hi attorney, Mr. Terry. The trial judge questioned petitioner at some length about his intent to plead guilty and the contents of the Plea Petition. After questioning by the court and conferring with Mr. Terry, petitioner eventually agreed he was guilty, and that he did understand the rights relinquished by his guilty plea. The following colloquy then took place concerning petitioner's possible sentence:
THE COURT: . . . Mr. Terry, you stated in the free — in the Petition, that this is a 6-E. Do you agree with that, Mr. Hill, that this is a 6-E?
MR. HILL: No, I don't, Your Honor.
THE COURT: Well, maybe we better —
MR. HILL: It's at least a 6-D.
THE COURT: Maybe we better discuss that before —
MR. TERRY: Can I — Let me — Can I look at the —
MR. HILL: He's got a one-person felony. That's a 6-D.
MR. TERRY: I beg your pardon. It would be a 6-D, Your Honor.
THE COURT: All right. Maybe you better discuss that with your client before I go forward.
MR. TERRY: He understands, basically, that he's got a prior felony and he's facing some prison time if he can't get a dispositional departure.
THE COURT: Sir, Villarreal Diez, your — your Petition for entry of plea of guilty says the guideline sentence 6-E. Your attorney is acknowledging that that's a 6-D. Do you agree with that, sir, and understand what that means?
MR. HILL: For purposes of clarification, Your Honor, the State hasn't stipulated to a box in this case. It may be that during the PSI investigation, that could change.
THE COURT: We're on the same wavelength, at least until we get the PSI?
MR. TERRY: That's correct, Your Honor.
A sentencing hearing was held on October 6, 1997. Mr. Terry argued the court should impose a dispositional departure sentence of three years of probation. The state argued petitioner should receive 13 months' imprisonment. Finding no mitigating factors, the court sentenced petitioner to a 13-month term of imprisonment and two years of post-prison supervision.
Petitioner did not object to the state's recommendation or to the imposition of his sentence. He did not request to withdraw his plea based on the fact his sentence was greater than what he thought it could be.
Petitioner did not directly appeal his conviction and sentence. He did, however, file a petition for state post-conviction relief ("PCR"), which was denied. Upon appeal and petition for review, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Villarreal v. Schiedler, 161 Or. App. 128, 984 P.2d 958, rev. denied, 329 Or. 358, 994 P.2d 125 (1999)
Petitioner filed this action on January 3, 2000. In his original pro se petition, he alleged denial of effective assistance of counsel in several respects. Following appointment of counsel, petitioner conceded procedural default with respect his original claims, but sought to amend his petition to allege a due process involuntary plea violation and a different ineffective assistance of counsel claim. Respondent argued the new claims were procedurally defaulted as well, but in an Opinion and Order of January 28, 2002, and subsequent order of June 6, 2002, I found they were not, and allowed the proposed amendment. Petitioner subsequently withdrew his ineffective assistance of counsel claim. Petitioner's Memorandum In Support of Habeas Corpus Petition (docket # 61), p. 2. Thus, the sole remaining claim states as follows:
Ground One: The trial court failed to ensure that I understood the constitutional rights I was waiving and the maximum sentence I would face when I pleaded guilty, in violation of Fourteenth Amendment due process.
Supporting Facts: In my plea petition, my lawyer wrote that I would be subject to a maximum sentence under guideline section 6E. At my change-of-plea hearing, I was told the appropriate guideline classification was 6D. No one explained the difference in these two classifications to me. I did not know that the maximum sentence I could receive was 13-14 months, or that if I was sentenced to more than 12 months, I would be required to serve my sentence at a state correctional facility rather than the county jail.
Respondent contends petitioner is not entitled to relief on this ground because he procedurally defaulted his available state remedies, and because he is not entitled to relief on the merits.
Respondent's procedural default argument differs from that previously rejected by the court.
DISCUSSION I. Procedural Default A. Legal Standards
A state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); Keeney v. Tamayo-Reyes, 504 U.S. 1, 9 (1992); Duckworth v. Serrano, 454 U.S. 1, 3 (1981). A prisoner satisfies the exhaustion requirement by "fairly" presenting his claims to the highest state court with jurisdiction to consider them. Keeney, 504 U.S. at 9; Picard v. Connor, 404 U.S. 270, 276 (1971). A prisoner fairly presents his claims by describing in the state court proceeding both the operative facts and the legal theory on which his claim is based. Anderson v. Harless, 459 U.S. 4, 6 (1982); Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). If a petitioner procedurally defaults on a claim in state court, federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice. Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1993).
B. Analysis
Respondent argues petitioner procedurally defaulted his due process claim because it differs from the claim he attempted to allege in the state PCR proceeding. That claim, respondent argues, alleged the trial court violated the Due Process Clause by failing to follow a state statute in accepting the guilty plea, whereas the claim before this court alleges that the trial court failed to ensure petitioner's plea was knowing, intelligent, and voluntary.
Respondent's argument is without merit. In his proposed Second Amended Petition for Post-Conviction Relief, petitioner alleged:
Petitioner's imprisonment is and was illegal because these proceedings resulted in substantial denial of Petitioner's rights in violation of the Fourteenth Amendment and the Oregon Constitution when the trial court
2. Proceeded with a plea and sentencing when it was not taken pursuant to ORS 135.385 in that the court did not determine that the defendant understood:
a. That a plea of guilty waives the right to a trial by jury, of confrontation, and against self-incrimination.
b. The maximum possible sentence on the charge.
c. That the plea may result in the deportation of the defendant.
Petitioner attempted to fairly present to the PCR court the federal basis for his due process claim. He specified the Fourteenth Amendment, and went on to spell out the specific constitutional rights the trial court failed to ensure he understood. Petitioner's citation to a state statute in the context of his Fourteenth Amendment claim does not defeat the obvious federal basis for the claim. Accordingly, there was no procedural default.
II. Relief on the Merits A. Legal Standards
Generally, this court must afford a high level of deference to state court findings of fact and conclusions of law in determining whether a petitioner is entitled to habeas corpus relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2254(e)(1) (determination of factual issue by state court presumed correct, presumption may be overcome only by clear and convincing evidence) and §§ 2254(d)(1) and (2) (establishing "contrary to" or "unreasonable application of" federal law standard). When there is no adjudication on the merits, however, review is de novo. See Moore v. Gibson, 195 F.3d 1152, 1163-64 (10th Cir. 1999), cert. denied, 530 U.S. 1208 (2000); Hunterson v. Disabato, 308 F.3d 236, 245 n. 9 (3d Cir. 2002); DiBenedetto v. Hall, 272 F.3d 1, 6-7 (1st Cir. 2001), cert. denied, 122 S.Ct. 1622 (2002).
Here, as discussed in the January 28, 2002 Opinion and Order on petitioner's motion for leave to amend his federal petition, the state court did not adjudicate petitioner's due process involuntary plea claim on the merits. Rather, the PCR trial court erroneously refused to allow petitioner to amend to include this claim. As such, the deferential standards of 28 U.S.C. § 2254 do not apply, and petitioner's claim must be reviewed de novo.
B. Analysis
In Boykin v. Alabama, 395 U.S. 238, 244 (1969), the Supreme Court held a record of a trial court's acceptance of a guilty plea must affirmatively disclose that a criminal defendant voluntarily and intelligently entered the plea. Thus, two distinct elements are involved in analyzing the validity of a guilty plea. Yellowwolf v. Morris, 536 F.2d 813, 815 (9th Cir. 1976). One is "whether the act was `voluntary,'" while the other "is whether the defendant's trial rights have been effectively waived, which requires that the act be `intelligent.'" Id., citing Schneckloth v. Bustamonte, 412 U.S. 218, 238 n. 25 (1973). "To qualify as an intelligent waiver of constitutional rights, the guilty plea must be made `with sufficient awareness of the relevant circumstances and likely consequences.'" Yellowwolf, 536 F.3d at 815, quoting Brady v. United States, 397 U.S. 742, 748 (1970).
In United States ex rel. Pebworth v. Conte, 489 F.2d 266, 268 (9th Cir. 1974), the Ninth Circuit held due process requires that a defendant be advised of the "direct consequence of his guilty plea, that is, the punishment that may be imposed." The court explained this holding in Yellowwolf, stating:
We note in particular how Pebworth combines with the Supreme Court's opinion a few years earlier in Boykin, which established the requirement that the record affirmatively disclose that a defendant who pleaded guilty did so understandingly and voluntarily. It is not enough that the defendant was sufficiently aware, under Boykin, the trial court is obligated to establish that awareness for the record. The logical result has been a ritual series of inquiries and admonitions. Pebworth ensures that awareness of the potential sentence is included in that ritual, hence the language in Pebworth about "the responsibility of the state court judge to advise a defendant of the direct consequences of his guilty plea."
Yellowwolf, 536 F.2d at 816, n. 5 (internal citations omitted).
Notwithstanding the requirements of Boykin and Pebworth, there is no "fixed colloquy" or "talismanic language" required in plea hearings. United States v. Williams, 20 F.3d 125, 133-34 n. 9 (5th Cir.), cert. denied, 513 U.S. 891 (1994); see also Stewart v. Peters, 958 F.2d 1379, 1384 (7th Cir.), cert. denied, 506 U.S. 883 (1992). Rather, to determine whether a guilty plea was entered voluntarily an intelligently, courts must consider all the relevant circumstances surrounding the guilty plea. Brady, 397 U.S. at 748; see also Johnson v. Zerbst, 304 U.S. 458, 464 (1938) ("The determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.")
Here, the trial court conducted an extensive colloquy with petitioner and his attorney concerning the various rights petitioner would waive by pleading guilty. The record establishes petitioner understood, and was prepared to admit his guilt to the charged crime. At this point, however, the process broke down.
When the court prepared to advise petitioner of the potential sentence he faced, the error in the Plea Petition came to light. Instead of the 6E sentencing range set forth in the Plea Petition, which petitioner had reviewed with his attorney before signing, petitioner would automatically be subject to the greater 6D range because of the prior person felony. While the court asked petitioner if he understood and accepted the difference, the court did not obtain an answer. Rather, the prosecutor interrupted to discuss the state's position.
Although counsel for petitioner ultimately agreed 6D was appropriate, and petitioner did not object or question counsel's agreement, the crucial missing factor remains any indication on the record of petitioner's personal acknowledgment and acquiescence.
Respondent's argument that petitioner must have understood the difference following a conference with his attorney is unsupported by the record. The transcript of the plea hearing indicates no break in the colloquy at the point the parties were discussing potential sentence. While petitioner and his attorney clearly conferred off the record earlier in the proceeding when the court questioned petitioner's willingness to plead guilty, there is no evidence they discussed the ramifications of correcting the error in the plea petition.
The record of the state court proceedings provides no indication petitioner understood the difference between the 6E and 6D sentencing ranges. The totality of circumstances surrounding the plea hearing may demonstrate petitioner did understand the actual potential sentence he faced by pleading guilty. I cannot, however, make that determination on the record before me. Moreover, I cannot make the credibility determination necessary to decide this issue on the competing affidavits offered in an attempt to establish facts not included in the record. Accordingly, I find an evidentiary hearing is necessary to determine whether petitioner's guilty plea was voluntary and intelligent.
The requirements of 28 U.S.C. § 2254(e)(2) for holding evidentiary hearings need not be satisfied here, as petitioner did not "fail" to develop the factual basis of his claim in state court; the PCR court prevented him from doing so. See Williams v. Taylor, 529 U.S. 420, 437 (2000) ("[f]f there has been no lack of diligence at the relevant stages in the state proceedings, the prisoner has not "failed to develop" the facts under § 2254(e)(2)'s opening clause, and he will be excused from showing compliance with the balance of the subsection's requirements").