Opinion
No. C97-4048-MWB.
February 8, 1999.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Elias Walter Wanatee ("Wanatee") filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 on June 9, 1997 (Doc. No. 1). On October 10, 1997, by order of Judge Mark W. Bennett, the matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) for the filing of a report and recommended disposition of the petition (Doc. No. 13).
Neither party filed a dispositive motion, so on June 5, 1998, the court held an evidentiary hearing on the merits. F. Montgomery Brown appeared on behalf of Wanatee. State of Iowa Assistant Attorney General Sharon Hall appeared on behalf of the defendant. The petitioner called Gregory E. Jones as a witness, and offered four exhibits into evidence. The state offered no evidence. The parties both filed post-hearing briefs (Doc. Nos. 35 and 36).
The court has fully considered the record, the arguments and briefs of the parties, and the evidence introduced at the evidentiary hearing, and now considers this matter to be fully submitted.
II. FACTUAL BACKGROUND
For the purposes of this report and recommendation only, the court makes the following findings of fact.
In a criminal trial information filed in Woodbury County, Iowa, the state charged that on November 4, 1990, Wanatee and two other persons attacked and murdered one Kelton DeCora. At trial, eyewitness testimony introduced by the state indicated that Wanatee and others had been beating DeCora with clubs and a cue ball immediately prior to his death. When police arrived at the scene, the attack was still in progress. DeCora died a short time later of a fatal knife wound (none of the witnesses observed a stabbing). Admitted into evidence over Wanatee's objection was testimony by a police officer that shortly after the apprehension of one of the participants of the assault, an unidentified bystander exclaimed: "This was a payback." Testimony was also admitted indicating that DeCora had been a suspect in an earlier beating of Wanatee.
On November 14, 1990, Petitioner Wanatee and two co-defendants were charged by trial information in Woodbury County, Iowa, district court with murder in the first-degree (count one), willful injury (count two), and assault while participating in a felony (count three). A jury trial commenced on March 21, 1991, and on March 26, 1991, Wanatee was found guilty on all three counts (his co-defendants were acquitted). On May 13, 1991, Wanatee was sentenced to life imprisonment on count one and ten years on count two (the court ruled that count three should be merged with count two).
Wanatee appealed his conviction to the Iowa Supreme Court, claiming that the trial court erred: (1) in refusing to submit willful injury as a lesser included offense of first-degree murder; (2) in admitting hearsay testimony; and (3) in refusing to grant a new trial on the basis of newly discovered evidence. State v. Wanatee, No. 104/91-994, slip op. at 2 (Iowa, April 21, 1993). The Iowa Supreme Court ruled that the trial court erred in refusing to submit willful injury as a lesser included offense of first-degree murder, but that the error was harmless. Id. at 4. With regard to the second alleged error, the court ruled that the hearsay was admissible as an excited utterance. Id. at 5. Finally, the court held that the trial court was correct in refusing to grant Wanatee a new trial because the "newly discovered evidence" was not, in fact, newly discovered. Id. at 6.
On November 2, 1994, Wanatee filed an application for post-conviction relief with the Woodbury County district court. In his application, Wanatee again raised the three issues presented in his direct appeal to the supreme court, and one additional claim — that he was denied effective assistance of trial counsel and appellate counsel in the following respects:
a. Trial counsel failed to perform an essential duty of advising the Applicant fully of the perils involved in this trial, and because of this lack of advice, the Applicant proceeded to trial rather than becoming involved in plea negotiations. Had the Applicant become involved in pursuing a plea agreement, he would have had an improved result over that which he has now.
b. Trial counsel failed to raise the defense of intoxication, despite having given notice of his intent to use the defense.
c. Trial counsel failed to object properly to evidence which was excludable. This reference would include, but not necessarily be limited to, the evidence that the Applicant had something of a `smirk' on his face when informed that DeCora had died, or to evidence that the Applicant had a taped roll of coins characterized as a weapon by a police witness.
App. for Post-conv. Rel., at 3.
On June 19, 1995, the Honorable Gary E. Wenell, Judge of the Third Judicial District of Iowa, entered an order granting the state's motion for summary judgment on Wanatee's application. Judge Wenell found that Wanatee's first three issues had all been decided adversely to him in his direct appeal, and that further review was prohibited by Iowa Code § 822.8. Judge Wenell further held that Wanatee had failed to establish that he had been denied effective assistance of trial counsel and appellate counsel. With respect to the first claim of ineffective assistance of counsel, Judge Wenell stated the following:
With regard to the allegations of failure to seek and obtain a plea agreement for the Petitioner the facts are set out in the deposition of his counsel, Greg Jones the Public Defender. His deposition reveals that a plea offer was immediately available for a few days after the Petitioner's arrest, but because he had very little information about the case and was unaware of the strength of the State's case against the Petitioner, he could not reasonably advise him about the wisdom of accepting it and no agreements were available thereafter. Of course, in hindsight it now appears this brief opportunity should have been seized in as much as the Petitioner proceeded to trial, was convicted of Murder in the First Degree, which conviction has been affirmed on appeal. . . . At the time the plea offer was made to [Wanatee] providing that if the Petitioner was willing to testify against two other defendants the Petitioner could plead to a charge of Second Degree Murder. A deadline however, was on said offer by the Assistant County Attorney which was that it had to be accepted before the trial informaton (sic) was filed. At such time numerous factual issues existed, however, one of which was the evidence suggested at the time of the offense that the Petitioner was intoxicated. (citation omitted) Hence, Mr. Jones stated it was very difficult at that time to go to Mr. Wanatee and recommend the offer, although it had been presented to him. In Mr. Jones' opinion it was impossible to evaluate the case in ten days, and to intelligently discuss the plea offer with this Petitioner. Although there are some defendants who are willing to do that the Petitioner was not one of them. The ten day period of time arose from the requirement that a trial information be filed within ten days of a complaint being filed, if the Defendant is incarcerated. See Rule 2. At the time the plea agreement was extended to Mr. Jones all he was aware of was that was contained in the complaint and affidavit, what he read in the newspaper and information that his investigator had obtained from various conversations with police officers. . . . In order to overcome his absence of information Mr. Jones requested police reports, however they were not received until after the trial information was filed. . . . The plea offer made to the Petitioner, although now being viewed as a beneficial one was not a practical one under the circumstances, because of the timing involved. (citation omitted) Although the proposed plea offer required it, the Petitioner was not interested in providing any information about anyone else prior to the time of the filing of the trial information.
Order, June 19, 1995, at 4-6. Judge Wenell stated that he could "not find that Petitioner's counsel failed to perform any essential duty required of him with regard to the acquisition of a plea agreement," id. at 7, and that, therefore, there were no issues of material fact, and the state was entitled to judgment as a matter of law on this issue.
Judge Wenell also pointed out that, at the time of the PCR action, Wanatee continued to assert that he was intoxicated during the incident, and that he did not know who stabbed the victim. Order, June 19, 1995, at 7.
With regard to the second allegation of ineffective assistance of counsel, the failure of trial counsel to pursue the defense of intoxication, Judge Wenell found that trial counsel had, in fact, raised this defense, and that the jury had been instructed on the defense. Id. at 7-8. As to the third allegation of ineffective assistance of counsel, the failure of trial counsel to object to excludable evidence, Judge Wenell found that "it is highly questionable whether the Petitioner has shown by a preponderance of the evidence that counsel's performance was not within the range of normal competency." Id. at 9. He further held that the evidence in question was either admissible or the admission of the evidence constituted harmless error. Id. at 9-10.
On December 20, 1996, the Iowa Court of Appeals affirmed the district court. Wanatee v. State, No. 6-595/95-1521 (Iowa Ct. of App. December 20, 1996). The court of appeals noted that a defendant in a criminal case is entitled to competent counsel at the plea bargain stage, but pointed out that "[t]his is not a case where misadvice, if given, led to a guilty plea; rather, it is a case where misadvice, if given, led to a not guilty plea." Id. at 3. In such a situation, according to the court of appeals, "[a] pretrial tactical error does not lead to the reversal of a fair trial." Id. at 4. With respect to the remaining two claims of ineffective assistance of counsel, the court of appeals held that Wanatee had failed to show that, even if trial counsel's challenged actions were error, there was a reasonable probability that absent the alleged errors a fact finder would have had a reasonable doubt concerning Wanatee's guilt. Id.
On June 9, 1997, Wanatee filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. No. 1). In his petition, Wanatee asserted three grounds: (1) that he was provided with ineffective assistance of counsel because his trial counsel had failed to advise him to accept the offered plea bargain; (2) that he was prejudiced by the admission of hearsay testimony at trial; and (3) that the trial court erred in failing to instruct the jury that willful injury was a lesser included offense to murder in the first degree.
III. LEGAL ANALYSIS — WANATEE'S § 2254 PETITION A. Standard of Review
Since the present case was filed after April 24, 1996, it must be analyzed under the habeas corpus standards pronounced in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Before the court can address Wanatee's substantive claims, however, he must clear the initial procedural hurdle put in place by the AEDPA, a one-year statute of limitations on petitions for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; . . .28 U.S.C. § 2244(d)(1) (West Supp. 1998).
The AEDPA does not address how the one-year deadline applies to prisoners convicted before the AEDPA but who have filed a section 2254 petition after the effective date. Reading the AEDPA literally, Wanatee's petition would be time-barred. In reviewing his direct appeal, the Iowa Supreme Court affirmed Wanatee's conviction on April 21, 1993. Adding on the time allowed for Wanatee to file a petition for writ of certiorari from the United States Supreme Court, ninety days, means Wanatee's conviction became final on July 20, 1993, and his section 2254 petition would have been due on July 20, 1994. See Smith v. Bowersox, No. 98-2358, 1998 WL 726756, at *2, (8th Cir. (Mo.)) (in cases where defendant does not seek certiorari, section 2244(d)(1)(A) statute of limitations begins to run upon conclusion of all direct criminal appeals in state system followed by expiration of time allotted for filing petition for writ); see also U.S. Sup. Ct. Rule 13. A literal interpretation of the AEDPA would time-bar Wanatee's June 9, 1997 petition.
The Eighth Circuit Court of Appeals also has not directly addressed this situation. See Nichols v. Bowersox, Nos. 97-3639, 97-3640, 1998 WL 151380, at *2 (8th Cir. (Mo.)) (noting parties and district court assumed that deadline to file section 2254 petition for prisoners convicted before AEDPA was April 23, 1997, but deciding not to address the issue). Several other circuits, however, have spoken on the issue, and have held that an otherwise time-barred section 2254 petitioner can have a "reasonable" length of time to file such motions, either one year from the effective date of the AEDPA or one year from the day following the effective date of the AEDPA. See Ross v. Artuz, 150 F.3d 97, 101 (2nd Cir. 1998); Burns v. Morton, 134 F.3d 109, 111 (3rd Cir. 1998); Brown v. Angelone, 150 F.3d 370, 374-75, (4th Cir. 1998); Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998); O'Connor v. United States, 133 F.3d 548, 550 (7th Cir. 1998); Calderon v. United States District Court for the Central District of California, 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998); Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 210, ___ L.Ed.2d ___ (1998); Wilcox v. Florida Department of Corrections, No. 97-4681, 1998 WL 754549, at *1, (11th Cir. (Fla.)). Nevertheless, even if the Eighth Circuit were to follow these other circuits, Wanatee's petition would still be time-barred because he filed it on June 9, 1997, more than one month after the end of the reasonable length of time allowed by the other circuits.
However, the AEDPA also provides that:
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(2) (West Supp. 1998). Only a few circuits have addressed whether this section tolls the section 2244(d)(1)(A) one-year statute of limitations for petitioners whose convictions became final before the effective date of the AEDPA, whose section 2254 petitions were filed after the AEDPA effective date, but who, at one time or another, had pending state post-conviction proceedings. The circuits addressing the issue have held that section 2244(d)(2) tolls the statute of limitations for such petitioners. See Fields v. Johnson, No. 98-10012, 1998 WL 754901, at *3, (5th Cir. (Tex.)); Hoggro v. Boone, 150 F.3d 1223, 1225-27 (10th Cir. 1998); see also Lovasz v. Vaughn, 134 F.3d 146, 148-49 (3rd Cir. 1998). Thus, the court must answer the following questions before deciding if Peeples's petition is time-barred:
(1) Even though a literal reading of the AEDPA's one-year statute of limitations would mean Wanatee's petition is time-barred, should this court follow the numerous circuits that have given otherwise time-barred petitioners a reasonable length of time after the effective date of the AEDPA in which to file their section 2254 petitions?
(2) If this court answers the first question affirmatively, should it also extend the tolling provisions of section 2244(d)(2) of the AEDPA to petitioners such as Wanatee whose conviction became final before the effective date of the AEDPA, whose petition was filed afer the effective date, but who had state postconviction proceedings pending at one time or another?
The court answers the first question affirmatively, relying upon the reasoning of the numerous cases cited supra that grant a petitioner in Wanatee's situation a reasonable time in which to file their section 2254 petitions. See Block v. North Dakota ex rel. Board of University and School Lands, 461 U.S. 273, 286 n. 23, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983) ("The Constitution . . . requires that statutes of limitations must `allow a reasonable time after they take effect for the commencement of suits upon existing causes of action.'"). Therefore, the court must address the "tolling" issue.
The one year period within which Wanatee should have filed his section 2254 petition began on the effective date of the AEDPA, April 24, 1996, and ended one year later, on April 24, 1997. Wanatee filed his state PCR application on November 2, 1994, and on June 19, 1995, an order was entered by the state district court granting the state's motion for summary judgment on the application. Wanatee then appealed the district court's order. The Iowa Court of Appeals rejected his appeal on December 20, 1996. Thus, at a minimum, the time from April 24, 1996 (the effective date of the AEDPA) to December 20, 1996 (the date on which Wanatee's appeal of the denial of his PCR application was rejected) should not count against the one-year period. This means that Wanatee was entitled to an additional 240 days to file his petition, or until December 20, 1997. Since Wanatee filed his section 2254 petition well within that time, June 9, 1997, it was timely filed.
B. Standard for Relief
Under § 2254, a person in custody pursuant to a state court judgment may petition for a writ of habeas corpus "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Federal courts have limited power to review state court convictions. Carter v. Armontrout, 929 F.2d 1294, 1296 (8th Cir. 1991). Only where errors of constitutional magnitude have occurred may the federal courts grant habeas relief. Id. at 1296.; Newlon v. Armontrout, 885 F.2d 1328, 1336 (8th Cir. 1989), cert. denied, 497 U.S. 1038, 110 S. Ct. 3301, 111 L. Ed. 2d 810 (1990). Indeed,
[a] petitioner must show more than error requiring reversal on direct appeal to obtain relief. He must show that the alleged error rendered the entire trial fundamentally unfair — that there is a reasonable probability that the error complained of affected the outcome of the trial — i.e., that absent the alleged impropriety, the verdict probably would have been different.Carter, 929 F.2d at 1296 (internal citations and quotations omitted).
This restricted approach means that the second and third claims in Wanatee's section 2254 petition, that the trial judge committed error by admitting hearsay testimony at trial and by failing to instruct the jury that willful injury was a lesser included offense to murder in the first degree (the "state law claims"), must be dismissed as being outside the scope of habeas review. "When determining whether to grant habeas relief, a federal court's review is limited to examining whether the conviction violated United States law." Crump v. Caspari, 116 F.3d 326, 327 (8th Cir. 1997) (citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 479-80, 116 L.Ed.2d 385 (1991)). In his section 2254 petition, Wanatee makes no claim that the state trial judge's errors deprived him of a federal constitutional right. Therefore, Wanatee's claims that the state judge erred in interpreting state law are not cognizable in a federal habeas petition.
C. Procedural Default
Even if the court found that the state law claims possessed some basis in federal constitutional law, the court would still be unable to address them because they are defaulted under the doctrine of exhaustion. The exhaustion requirement is based on the principle of comity that "federal courts should not consider a claim in a habeas corpus petition until after the state courts have had an opportunity to act." Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 1201 71 L.Ed.2d 379 (1982). The doctrine holds that "before a federal court may reach the merits of a claim in a habeas petition by a state prisoner, it `must first determine whether the petitioner has fairly presented his federal constitutional claims to the state court.'" Frey v. Schuetzle, 151 F.3d 893, 897 (8th Cir. 1998) (quoting Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam)). "In order to fairly present a federal claim to the state courts, the petitioner must have referred to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue in a claim before the state courts." McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997) (internal quotations omitted).
When Wanatee presented his claims to the state court that he was prejudiced by the admission of hearsay testimony at trial and that the trial court erred in its instructions to the jury, he based his arguments on what he perceived as the misapplication of state law. He has never presented the state court with a federal constitutional argument on these two issues. In fact, the record shows that throughout his trial, appeal, and post-conviction action, Wanatee never raised the argument that the state law claims affected his federal constitutional rights. These claims are therefore procedurally barred for failure to exhaust available state remedies.
Once a petitioner's claim is procedurally barred, a federal court will generally refuse to consider it unless the petitioner shows either cause and prejudice, United States v. Frady, 456 U.S. 152, 168, 102 S. Ct. 1584, 1594, 71 L. Ed. 2d 816 (1982), or a fundamental miscarriage of justice, which requires a petitioner to show that he is actually innocent of the crime of which he was convicted or the penalty imposed. Sawyer v. Whitley, 505 U.S. 333, 339, 112 S. Ct. 2514, 2518-19, 120 L. Ed. 2d 269 (1992). Wanatee has made no such showing here. Furthermore, the court notes that if it found that Wanatee had failed to exhaust his state remedies, the current petition would present exhausted and unexhausted claims. While such "mixed petitions" may be dismissed allowing the petitioner to return to state court to exhaust his state claims, the AEDPA allows a court to deny a petition on the merits "notwithstanding the failure of the applicant to exhaust the remedies in the courts of the State." 28 U.S.C. § 2254(b)(2) (West Supp. 1998); see also Victor v. Hopkins, 90 F.3d 276, 280 n. 2 (8th Cir. 1996).
D. The Merits of Petitioner's Remaining Claim
The court now turns to the merits of Wanatee's claim that he did not receive effective assistance of counsel during plea negotiations. In essence, Wanatee claims that his attorney, Jones, was ineffective because he did not talk him into accepting a plea agreement within the ten-day period during which it was available. Jones now agrees that he was ineffective. Transcript of Hearing of June 5, 1998, at 22-23, 36-37, hereinafter cited as Tr. __. For the reasons set forth below, the court does not.Jones testified that he has been the chief public defender for the Third Judicial District of Iowa since 1986. Tr. 4. Before that he was an assistant Woodbury County attorney handling major felony criminal prosecutions. Id. On November 4, 1990, Wanatee was arrested on a charge of first-degree murder (Tr. 6-7). The first contact between Wanatee and the public defender's office was on November 5, 1990, when Wanatee met with an investigator employed by the public defender. Tr. 7. On November 5, 1990, Jones became involved in the case, and had a conversation with first assistant Woodbury County attorney Mark Campbell. Campbell offered to let Wanatee plead guilty to second-degree murder in exchange for his truthful cooperation in the continuing investigation into the homicide. Tr. 8-9. There were three conditions on the offer — (1) Wanatee would have to name other persons involved in the assault and murder, (2) he would have to agree to cooperate and testify against others, and (3) the offer would only be held open until November 14, 1990 (the day by which, under Iowa law, see IOWA CODE ANN. § 813.2 Rule 2(4)(a) (West 1990), the trial information was required to be filed). Tr. 9-10, 19.
At the time of the offense, second-degree murder carried a 50-year sentence with the possibility of parole. IOWA CODE ANN. § 707.3 (West 1990). First-degree murder carried a mandatory sentence of life imprisonment with no possibility of parole. IOWA CODE ANN. § 902.1 (West 1990) (person convicted of class "A" felony subject to life imprisonment without parole unless sentence commuted to term of years); IOWA CODE ANN. § 707.2 (West 1990) (first-degree murder is class "A" felony).
Jones testified that since the Wanatee case he has changed his practice to "really push [the assistant county attorneys] hard to give us more time before we have to make a decision." Tr. 18. He also testified that the assistant county attorneys have become "a little more reasonable to deal with." Tr. 20.
Soon after this conversation, Jones met with Wanatee and communicated the plea offer to him. Id. Jones fully explained the plea offer (Tr. 21) but did not recommend that Wanatee accept or reject it, feeling that he did not have enough information about the case to make an informed recommendation. Tr. 10-11, 14, 21. Jones knew he was faced with a dilemma — under Iowa law, he was not entitled to discovery until after the trial information was filed (Tr. 26-27; see IOWA CODE ANN. § 813.2 Rule 13), but he had to decide whether or not to recommend that his client accept the plea offer before the filing of the trial information. He was also faced with three additional, and perhaps insurmountable, problems — his client denied any memory of the stabbing, claiming intoxication (Tr. 31-34); his client claimed that one of his co-defendants was not involved in the assault and murder and that he did not even know the other co-defendant (Tr. 15); and his client refused to cooperate with the state against anyone (Tr. 16, 28).
Jones testified that as a direct result of the Wanatee case, he is now more forceful with clients when communicating plea offers. Tr. 22-23.
Jones testified:
Q. (by Ms. Hall): Isn't it true that when you told Mr. Wanatee about the plea offer he indicated to you that he was not willing to cooperate and provide information about any of these other people?
A: That is true.
Q: And from his reaction, you believed that his feelings on this subject were pretty strong?
A: Yes, that was my feeling at the time, and it's still my memory, that he did not want to take a deal that required cooperation.
Tr. 28.
In an effort to obtain more information during the short window of opportunity, Jones had his investigator, a former police officer with good ties to the police department, try to find out about the state's case. Tr. 12. These efforts were not very successful. Id. During the ten-day period, Jones spoke with Wanatee several times about the plea offer and the deadline, but Wanatee was "very firm" that he did not want to accept the offer. Tr. 16-17. After the ten-day period expired, Jones learned the details of the serious situation faced by his client, and repeatedly, but unsuccessfully, sought to convince the assistant county attorney handling the case to re-offer the plea agreement. Tr. 24, 26. Wanatee now argues that the efforts of his attorney amounted to ineffective assistance of counsel.
These efforts were without Wanatee's knowledge, because Jones did not want to lose his credibility with his client, who did not want to plead guilty. Tr. 24, 26, 28.
The standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs whether assistance provided by counsel during the plea process is constitutionally ineffective. Bivens v. Groose, 28 F.3d 62, (8th Cir. 1994), citing Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985). As the court stated in Bivens, "Under the Strickland standard, `[t]o establish that his trial counsel was constitutionally ineffective, a habeas petitioner must show that his counsel's performance was deficient and that he was prejudiced by this deficiency. Counsel's representation was deficient if it fell below an objective standard of reasonableness, and the petitioner was prejudiced by this deficiency if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' Flieger v. Delo, 16 F.3d 878, 885-86 (8th Cir. 1994) (internal quotation marks and citations omitted)." Id.
In Engelen v. United States, 68 F.3d 238 (8th Cir. 1995), the government offered Engelen a plea bargain prior to trial, which he rejected. Id. at 240. A trial and conviction followed. Id. In a subsequent § 2255 action, Engelen made several allegations of ineffective assistance of counsel, including an allegation that his attorney had failed to inform him of the advantages of accepting the proffered plea agreement. Id. The court held that " Strickland's two-part test applies to ineffective assistance of counsel claims arising out of the plea process." Id. at 241. To succeed on such a claim, "[f]irst, the movant must show that `counsel's representation fell below an objective standard of reasonableness.' Strickland at 687-88, 104 S.Ct. at 2064. Second, the movant must show that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' Id. at 694, 104 S.Ct. at 2068." Id. The court pointed out that it did not need to address both components if the movant makes an insufficient showing on one of the prongs. Id., citing Strickland at 697, 104 S.Ct. at 2069.
a. cause
In order to show that Jones's conduct amounted to cause under Strickland, Wanatee must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065. The court finds that Wanatee has failed to satisfy this burden, and that the representation provided by Jones was well within the bounds of reasonable professional assistance.
Wanatee complains that Jones should have strongly recommended the plea offer to him, and that his failure to do so constituted ineffective assistance of counsel. It is well established that an attorney's failure to communicate a government plea offer to his client constitutes unreasonable performance. United States v. Valdivia, 60 F.3d 594, 595 (9th Cir. 1995) ; United States v. Blaylock, 20 F.3d 1458, 1466 (9th Cir. 1994). That is not what happened here. Jones fully and accurately communicated the state's plea offer to his client. However, incorrect advice about the desirability of a plea offer can also constitute ineffective assistance of counsel United States v. Day, 969 F.2d 39, 43-44 (3d Cir. 1991). Again, that is not what happened here — Jones did not give incorrect advice to his client. The issue here can be stated as follows: Under the unique circumstances of this case, was Wanatee's attorney ineffective because he did not, during a ten-day window of opportunity, strongly recommend to his client that he accept a plea offer?
A defendant's Sixth Amendment right to counsel attaches at all critical stages in the proceedings "after the initiation of formal charges," Moran v. Burbine, 475 U.S. 412, 431, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), including during plea negotiations. Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir. 1996) (holding that ineffective assistance of counsel during plea negotiations justified § 2254 habeas relief); Day, 969 F.2d at 44 (holding that § 2255 could provide relief where trial counsel was ineffective by giving defendant substandard advice about his sentence exposure under the Sentencing Guidelines during plea negotiations); Toro v. Fairman, 940 F.2d 1065, 1067 (7th Cir. 1991); Beckham v. Wainwright, 639 F.2d 262, 267 (5th Cir. 1981). The Second Circuit has stated that "[t]he decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in a criminal case . . . [and] counsel may and must give the client the benefit of counsel's professional advice on this crucial decision." Boria, 99 F.3d at 496-97 (quoting Anthony G. Amsterdam, Trial Manual 5 for the Defense of Criminal Cases (1988)). It follows that "[k]nowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial to the decision whether to plead guilty." United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998), citing Day, 969 F.2d at 43. Thus, the question here is whether Wanatee has proved that Jones breached his duty as a defense lawyer in a criminal case "to advise his client fully on whether a particular plea to a charge appears desirable." Boria, 99 F.3d at 496 (quotation marks and citation omitted).
To prove that his attorney was ineffective, Wanatee must demonstrate that the advice, or the lack of advice, he received about the plea offer during the ten-day period was outside the range of competence demanded of attorneys in criminal cases. Beckham, 639 F.2d at 267 (citing Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 1607, 36 L.Ed.2d 235 (1973)). "A guilty plea must represent the informed, self-determined choice of the defendant among practicable alternatives; a guilty plea cannot be a conscious, informed choice if the accused relies upon counsel who performs ineffectively in advising him regarding the consequences of entering a guilty plea and of the feasible options." Hawkman v. Parratt, 661 F.2d 1161, 1170 (8th Cir. 1981), citing United States v. Cannon, 553 F.2d 1052, 1056 (7th Cir. 1977).
The first problem Wanatee must confront is that during the time the plea offer was open he did not want to plead guilty. Wanatee acknowledges that he appeared to be non-receptive to cooperation while the plea bargain was open, but claims that Jones should have told him that "the known facts and Iowa law put him at substantial risk of being convicted of Murder in the First Degree." Pet. Br. at 14. He argues that Jones had an obligation to convince him that he would likely be convicted to make him confront the "specter of cooperating." Id. Specifically, Wanatee claims that he should have been given more information about the felony-murder rule, aiding and abetting, and joint criminal conduct at the time the plea offer was presented. Id. 13-14; Tr. 13-14, 17. Wanatee contends that "[b]ecause of the inadequate advice, Petitioner made at best, an uninformed choice to let the plea bargain pass and not name names." Pet. Br. 14.
Wanatee also argues that Jones should have asked for additional time to respond to the plea argument (Pet. Br. at 13), but there is nothing in the record to suggest that such a request would have been successful. Tr. 24.
All of the authorities cited by Wanatee to support his position involve attorneys who either failed to present a plea offer to their clients or who misrepresented the terms or the effect of a plea offer to their clients. Here, Wanatee cannot claim that he was not informed or was misinformed about the plea offer, but argues that his attorney was ineffective because he did not act fast enough and forcefully enough to persuade Wanatee to accept the plea offer. In effect, Wanatee argues that his lawyer should have immediately recognized that any attempt to defend his case was hopeless and should have persuaded Wanatee, against his will, to plead guilty. He contends that his attorney should have done this before reviewing the state's evidence and in the face of a client who was intoxicated at the time of the offense (with little memory of what actually happened), who was adamantly opposed to pleading guilty, and who probably would not, (or could not) perform the required terms of the plea offer. While it is true that Jones could have decided, despite all of these problems, to try to force his client to plead guilty ( see, e.g., United States v. Prior, 107 F.3d 654, 661-62 (8th Cir. 1997)), it would be patently unfair for anyone to second-guess his decision not to do so.
The Supreme Court instructs in Strickland that the reason a court sitting in habeas review grants counsel's actions a strong presumption of correctness is "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Certainly, in hindsight, Wanatee should have taken this offer. On the other hand, one can imagine how Wanatee would have reacted if he had pled guilty to a charge carrying a fifty-year prison term before his attorney had even examined the state's evidence, and then watched while his two co-defendants were acquitted.
During the time the plea offer remained open, Wanatee's attorney struggled against a lack of information and a non-receptive client, not knowing how the case would actually develop. Navigating his own Strait of Messina, Jones acted reasonably. He informed Wanatee of his options and advised Wanatee to seriously consider the plea offer. Anything more or anything less may have sent him into the arms of Scylla or Charybdis.
b. prejudice
Even if Wanatee could show that Jones's actions, or inactions, amounted to deficient performance rising to the level of cause, he cannot show prejudice. To establish prejudice, Wanatee 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, 104 S.Ct. at 2068. In making this determination, the court must take into account "whether the result of the proceeding was fundamentally unfair or unreliable." Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993).
A petitioner, even after rejecting a proposed plea bargain and receiving a fair trial, may still show prejudice if the plea bargain agreement would have resulted in a lesser sentence. Engelen, 68 F.3d at 241; see Rodriguez, 929 F.2d at 753 n. 1; United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992); Turner v. Tennessee, 858 F.2d 1201, 1205-07 (6th Cir. 1988), vacated on other grounds, 492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559 (1989), reinstated, 726 F. Supp. 1113 (M.D.Tenn. 1989), aff'd, 940 F.2d 1000 (1991), cert. denied, 502 U.S. 1050, 112 S.Ct. 915, 116 L.Ed.2d 815 (1992); Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991), cert. denied, 505 U.S. 1223, 112 S.Ct. 3038, 120 L.Ed.2d 907 (1992); Blaylock, 20 F.3d 1458, 1465-67; Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1992). Wanatee can certainly show that he would have been better off if he had accepted the offered plea bargain. However, to establish prejudice here he must also show that, but for his counsel's advice (or lack of advice), he would have accepted the plea. Engelen, 68 F.3d at 241.
The Iowa Court of Appeals, without authority, held directly to the contrary in affirming the state district court's denial of Wanatee's application for post-conviction relief. Wanatee v. State, No. 6-595/95-1521, slip op. at 3 (Iowa Ct. of App. Dec. 20, 1996).
In an affidavit dated May 27, 1995 (hearing exhibit B), Wanatee states the following:
6. I was not advised about felony-murder rule sufficiently at some time prior to trial. Had I known about the felony-murder rule, I would have accepted the offer as made by the State prior to the filing of the Trial Information.
7. I would have testified under the plea agreement that when I was assaulting Kelton DeCora, that Shawn Denney and Joseph Saul and Phillip Creek were present. I don't know who stabbed Kelton DeCora. I did not expect Kelton DeCora to be injured mortally.
The court does not find these assertions to be particularly probative of what Wanatee would, in fact, have agreed to during the ten-day period the plea offer was available. This is especially true in light of paragraph 3 of the affidavit, which is far more equivocal: "If Mr. Jones had impressed upon me that legal and factual issues in my case on the charges of murder in the first degree (and my related charges) in connection with the death of Kelton DeCora, I would have considered the advantages of engaging in a plea agreement." Furthermore, it is doubtful that a defendant's self-serving, post-conviction testimony regarding his intent with respect to a plea offer would ever be sufficient, by itself, to establish a "reasonable probability" that he or she would have accepted the plea agreement. United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998); see Johnson v. Duckworth, 793 F.2d 898, 902 n. 3 (7th Cir. 1986); see also Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991) (finding awareness of plea offer and after-the-fact testimony concerning desire to plead is insufficient evidence) ; Day, 969 F.2d at 45; United States v. Jerome, 933 F. Supp. 989, 995 (D.Nev. 1996).
Except for the self-serving statements made by Wanatee in his affidavit, the record contains no evidence that Wanatee would have agreed to the conditions of the plea agreement during the ten-day window of opportunity. In fact, the evidence is to the contrary. The record suggests that Wanatee could not (or would not) name other persons involved in the assault and murder, and particularly, that he could not name the person who stabbed the victim. See supra note 1. The record also strongly suggests that Wanatee would not agree to cooperate and testify against others. Tr. 16-17, 28. Taken as a whole, the evidence is not sufficient to show that Wanatee would have agreed to and performed the terms of the offered plea agreement. The court finds that the evidence established that Wanatee was not likely under any circumstances to have accepted the offered plea agreement within the allowed ten days. United States v. Stevens, 149 F.3d 747, 748 (8th Cir. 1998).
Furthermore, the court is bound to accept the factual determinations of the state court unless they were unreasonable in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(2); Williams v. Taylor, 163 F.3d 860, 871-72 (4th Cir. 1998). Such determinations are presumed correct, and an applicant for habeas corpus relief has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Ashker v. Class, 152 F.3d 863, 867 (8th Cir. 1998); Warren v. Smith, 161 F.3d 358, 360-61 (4th Cir. 1998). Here, Judge Wenell made detailed factual determinations concerning the question of whether Wanatee was prejudiced by the representation he received from his attorney during plea negotiations and concluded that he was not. See supra pp. 4-5. Wanatee has not shown by clear and convincing evidence that Judge Wenell's factual determinations on this issue were incorrect, so they are binding on this court.
The ultimate question of whether Wanatee's attorney was ineffective is a mixed question of law and fact. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984); United States v. Blaylock, 20 F.3d 1458, 1464-65 (9th Cir. 1994). This court finds that even without the presumption of correctness in 28 U.S.C. § 2254(e)(1), and without considering the limitations in 28 U.S.C. § 2254(d)(1), Wanatee has not established under the Strickland standard that Jones was ineffective during plea negotiations or that he was prejudiced by any shortcomings in his representation.
Wanatee has failed to show that he suffered prejudice here because he has not shown that he would have performed the conditions of the offer. Ayd v. United States, 25 F.3d 624, 626 (8th Cir. 1994). Therefore, he has not satisfied the second prong of the Strickland test.
IV. CERTIFICATE OF APPEALABILITY
A prisoner must obtain a certificate of appealability from a district or circuit judge before appealing from the denial of a federal habeas petition. See 28 U.S.C. § 2253(c) (West Supp. 1998). A certificate of appealability issues only if the applicant makes a substantial showing of the denial of a constitutional right. See Roberts v. Bowersox, 137 F.3d 1062, 1068 (8th Cir. 1998).
The court believes that Wanatee has failed to make a substantial showing that he has been deprived of a constitutional right. Therefore, the court does not recommend that a certificate of appealability be granted.
V. CONCLUSION
For the reasons stated herein, Wanatee's challenges to the constitutionality of his confinement have no merit.
IT IS RECOMMENDED that, unless any party files objections to the report and recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the petition pursuant to 28 U.S.C. § 2254 be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 475, 88 L. Ed. 2d 933 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).