Opinion
Case No. 03-3354-JWL
February 13, 2004
MEMORANDUM AND ORDER
A.J. Kidd brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1), alleging that he did not knowingly and intelligently enter into his plea agreement because his counsel miscalculated the potential length of his sentence. He also contends that this miscalculation constitutes ineffective assistance of counsel in violation of his rights under the Sixth Amendment.
After thoroughly reviewing the parties' motions, briefs and the underlying record, the court finds that the evidence clearly establishes that Mr. Kidd is entitled to no relief. In particular, the state court adjudicated Mr. Kidd's claim on the merits and found that he knowingly and voluntarily entered into the guilty plea, despite his mistaken belief regarding the length of the possible sentence. Mr. Kidd has failed to demonstrate that this decision was contrary to or an unreasonable application of controlling Federal Law. As such, the court denies his petition in its entirety.
BACKGROUND
On October 28, 1999, the State filed a complaint charging Mr. Kidd with attempted first degree murder, aggravated battery and aggravated intimidation of a witness. On January 3, 2000, Mr. Kidd pled guilty to the aggravated battery and criminal threat charges. During the plea colloquy, the state trial judge explained and Mr. Kidd acknowledged that the sentencing range on the aggravated battery charge was 38 to 172 months of incarceration. Similarly, the state trial judge explained and Mr. Kidd acknowledged that the sentencing range on the criminal threat charge was 5 to 17 months. When the judge asked Mr. Kidd if there were any other terms or conditions affecting the plea agreement that were not set forth in writing, Mr. Kidd indicated that there were none.
Mr. Kidd also submitted a document entitled "Tender of Plea of Guilty or No Contest." Therein, he stated that he fully understood that the court was not bound by any agreements made between the County Attorney and defense counsel concerning the sentence to be imposed in this case. He further stated that he understood that it was "the Court's responsibility, and the Court's alone, to determine the appropriate sentence in the matter." Mr. Kidd's counsel, Joseph A. Alien, signed and attached a certificate of counsel to the plea tender. In that document, Mr. Alien noted that he "made no promises to the defendant concerning any sentence which the Court may impose." In a written order accepting the plea agreement, the state court judge indicated that he had informed Mr. Kidd of the maximum penalty that could be imposed.
The judge ordered the probation office to prepare a pre-sentence investigation report. After receiving the report, Mr. Kidd filed a motion to withdraw his guilty plea on March 3, 2000. In his motion, he alleged that his counsel improperly advised him of the potential sentencing range under the plea agreement.
On April 4, 2000, the court held a hearing on the motion to withdraw. At that hearing, Mr. Alien explained that in advising Mr. Kidd as to his potential sentence, he relied on a pre-sentence report from a prior conviction in 1997. Unfortunately, that report either omitted or did not allow for conversion of several misdemeanor convictions that were included in the 2000 report. As a result, Mr. Alien advised Mr. Kidd that his criminal history would place him in category "C" under the Kansas Sentencing Guidelines, when in reality, petitioner's criminal history placed him in category "B." Mr. Alien further indicated that Mr. Kidd made it clear that he would enter the plea if he had a criminal history score of "C," but that he would not enter the agreement if his score was higher. As such, Mr. Alien concluded that Mr. Kidd had "grounds to believe that he was improperly advised." The court denied Mr. Kidd's motion to withdraw his plea and sentenced him to a controlling term of 144 months imprisonment.
Mr. Kidd appealed the trial court's denial of his motion to withdraw his guilty pleas, and the Kansas Court of Appeals affirmed the district court. State v. Kidd, 43 P.3d 902, No. 86,492 (Kan.Ct.App. April 5, 2002). The state appellate court noted that Kansas common law has consistently held that where a trial court advises the defendant of his maximum sentence, his plea is knowing and voluntary, even if he holds a mistaken belief about his criminal history score or the length of his guideline sentence. Id. at 3. The appellate court found that, in this case, the trial court properly "informed Mr. Kidd of his potential maximum sentence, and, in fact, sentenced him within that range." Id. at 4. The appellate court also found that petitioner could not seriously blame his attorney for his own lapse of memory as to his prior convictions. Id. The Kansas Supreme Court denied review on June 13, 2002.
On August 2, 2002, Mr. Kidd filed a state habeas corpus petition pursuant to K.S.A. § 60-1507. On October 30, 2002, the state district court denied the pro se motion because Mr. Kidd raised the same claim that the Kansas Court of Appeals addressed on direct appeal. Mr. Kidd did not appeal the denial of his § 60-1507 motion to the Kansas Court of Appeals. Mr. Kidd filed his petition for federal habeas corpus relief on August 25, 2003.
STANDARD
Because Mr. Kidd "filed his habeas petition after April 24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") govern this appeal." Martinez v. Zavaras, 330 F.3d 1259, 1262 (10th Cir. 2003) (citations omitted). The AEDPA "circumscribes a federal habeas court's review of a state-court decision." Anderson v. Mullin, 327 F.3d 1148, 1152 (10th Cir. 2003) (quotations omitted).
Specifically, where, as here, the Kansas Court of Appeals reviewed the merits of petitioner's claims, "habeas relief is not warranted unless the state adjudication `(1) . . . 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) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Martinez, 330 F.3d at 1262 (quoting § 2254(d)) (emphasis added). "Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, the Court in Williams stressed that the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was `objectively unreasonable.'" Anderson, 327 F.3d at 1153 (citing Williams, 529 U.S. at 409).
The court presumes "that factual determinations made by the state court are correct, and the petitioner bears the burden of rebutting this presumption with clear and convincing evidence." Martinez, 330 F.3d at 1262 (citing § 2254(e)(1); Fields v. Gibson, 277 F.3d 1203, 1221 (10th Cir. 2002)). "This presumption does not extend to legal determinations or to mixed questions of law and fact." Id. (citing Herrera v. Lemaster, 225 F.3d 1176, 1178-79 (10th Cir. 2000)). "That is, the `deferential standard of review does not apply if the state court employed the wrong legal standard in deciding the merits of the federal issue.'" Id. (quoting Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003)). "Ultimately, our review of the state court's proceedings is quite limited, as section 2254(d) sets forth a highly deferential standard for evaluating state-court rulings." Anderson, 327 F.3d at 1152.
ANALYSIS
Mr. Kidd alleges that he did not knowingly and voluntarily enter his plea agreement because plea counsel (Mr. Alien) miscalculated his criminal history score and, as a result, inaccurately projected the length of his sentence. Mr. Kidd further alleges that this advice constitutes ineffective assistance of counsel in violation of his rights under the Sixth Amendment.
The court does not address his ineffective assistance claim as a separate ground for relief because, as explained herein, the ineffective assistance of counsel standard is subsumed by and contained within the legal framework for analyzing the due process claim.
The Due Process Clause of the Fourteenth Amendment requires that a defendant knowingly and voluntarily enter a plea of guilty. Boykin v. Alabama, 395 U.S. 238, 242 (1969). "The longstanding test for determining the validity of a guilty plea is `whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)).
The Supreme Court has not conclusively determined whether an attorney's miscalculation of a defendant's sentence violates substantive due process so as to invalidate a guilty plea. However, it has set forth a legal framework to guide the court's analysis of this issue. In Hill, 474 U.S. 52, petitioner claimed that his plea was involuntary as a result of ineffective assistance of counsel because his attorney supplied him with information about parole eligibility that was erroneous. Id. at 56. The Court explained that where a "defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice `was within the range of competence demanded of attorneys in criminal cases.'" Id. (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970). As such, "a defendant who pleads guilty upon the advice of counsel `may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann'" Id. at 56-57 (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973)). In the end, the Hill Court concluded that "the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." 474 U.S. 58. "In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence . . . The second, or `prejudice,' requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Id. 58-59.
In applying this framework, the Hill Court found it unnecessary to determine whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed constitutionally ineffective assistance of counsel, because . . .[the court] conclude[d] that petitioner's allegations [were] insufficient to satisfy the Strickland v. Washington requirement of `prejudice.'" Id. at 60. Thus, the Supreme Court has not analyzed under what conditions an attorney's miscalculation or erroneous estimate as to a defendant's sentence would fall below an objective standard of reasonableness. Earlier decisions from the Supreme Court, however, suggest that there is room for miscalculations made in good-faith. In McMann, the Supreme Court explained that when a criminal defendant waives trial by entering a plea agreement, he or she assumes "the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court's judgment might be on given facts." 379 U.S. at 770 (1970); see also Fields, 277 F.3d at 1214. Thus, the requirement that a defendant knowingly and intelligently enter a plea agreement does not require that "all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing." Id.
Here, all parties admit that Mr. Kidd's trial counsel failed to accurately calculate his criminal history score, and as a result, the length of his sentence under the plea agreement. No party suggests that Mr. Alien made the calculations in bad faith. The Kansas Court of Appeals found that Mr. Kidd knowingly and intelligently entered his plea despite the advice Mr. Alien rendered as to his ultimate sentence. While the court sympathizes with a defendant who enters a guilty plea based on incorrect information from his or her counsel, the limited question on habeas review is whether the state court's adjudication was contrary to or an unreasonable application of controlling Federal Law as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1). To satisfy the "contrary to" clause, the state court's decision must arrive at a conclusion opposite to that reached by the Supreme Court on a question of law or decide a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13 (O'Connor, J. concurring). As explained above, the Supreme Court has not squarely addressed under what conditions an attorney's erroneous sentence estimate rises to the level of constitutionally deficient performance. In the absence of such an opinion, the state court's adjudication cannot be contrary to established Federal Law under § 2254.
To satisfy the "unreasonable application" clause, petitioner must demonstrate that the state court unreasonably applied Supreme Court precedent. Id. at 413. Again, the Supreme Court has set forth only a general legal framework for addressing whether an attorney's miscalculation invalidates a plea. Additionally, the Court has suggested in other decisions that a petitioner assumes the inherent risk of good-faith miscalculations when waiving his or her right to trial. Given the generality of the controlling legal framework and other decisions suggesting that a court must tolerate good-faith miscalculations, the court cannot find that the state court's adjudication was an unreasonable application of Federal Law. That is not to say that this court might not, under identical circumstances, have granted defendant's motion to withdraw his plea. Mr. Kidd has made a showing that he would have gone to trial but for counsel's mistaken advice. Nonetheless, the legal standard governing review of Mr. Kidd's petition is narrow and the court is mindful of the fact that "an unreasonable application of federal law is different from an incorrect or erroneous application of federal law." Id. at 412 (emphasis in original). That is, even if the state court's decision was wrong (which this court need not determine), the court must still deny habeas relief so long as the adjudication was not objectively unreasonable. Based on the foregoing analysis, the court concludes that the Kansas Court of Appeals decision was an objectively reasonable application of Federal Law as determined by the Supreme Court.
While § 2254 focuses on Federal Law as determined by the Supreme Court, federal courts, even on habeas review, have an independent obligation to determine what the law is. Wiliams, 529 U.S. at 382. Thus, in the absence of further guidance from the Supreme Court as to what constitutes an objectively unreasonable performance that would invalidate a plea agreement, the court will "steer its course in the direction pointed by the [Tenth] Circuit." See Phillips v. Iowa, 185 F. Supp.2d 992, 1018 (N.D. Iowa 2002) (relying on Eight Circuit precedent in reviewing claim under AEDPA in absence of further guidance from the Supreme Court). Unlike the Supreme Court, the Tenth Circuit has more specifically examined under what circumstances an attorney's conduct can invalidate a plea agreement. Generally, the Tenth Circuit has found that a plea may be rendered involuntary when an attorney materially misinforms the defendant of the consequences of the plea. Laycock v. State of N.M., 880 F.2d 1184, 1186 (10th Cir. 1989). The pivotal question is what constitutes "material misinformation" in the context of a due process challenge. The Tenth Circuit has identified two situations where "material misinformation" as to the consequences of a plea violate due process. First, an attorney "materially misinforms" a defendant when he or she falsely represents that promises or guarantees exist, Fields v. Gibson, 277 F.3d 1203, 1213 (10th Cir. 2002) (citing Braun v. Ward, 190 F.3d 1181, 1189 (10th Cir. 1999)). Second, an attorney "materially misinforms" a defendant when he or she makes unfair representations concerning a judge's probable leniency. United States v. Rhodes, 913 F.2d 839, 843 (10th Cir. 1990) (citing Laycock, 880 F.2d at 1186). However, "`[a]n erroneous sentence estimate by defense counsel does not render a plea involuntary . . . And a defendant's erroneous expectation, based on his attorney's erroneous estimate, likewise does not render a plea involuntary.'" Fields, 211 F.3d at 1214 (quoting Wellnitz v. Page, 420 F.2d 935, 936-37 (10th Cir. 1970) (internal citations omitted). Similarly, "although constitutionally deficient performance by defense counsel may render a plea involuntary, `[a] miscalculation or erroneous sentence estimation by defense counsel is not a constitutionally deficient performance.'" United States v. Williams, 118 F.3d 717, 718 (10th Cir.) (quoting United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993), cert. denied, 510 U.S. 1184 (1994)), cert. denied, 522 U.S. 1033 (1997).
Thus, the relevant question is whether Mr. Alien's inaccurate criminal history calculation fell within one of the two categories of "material misinformations" that would render a plea invalid (promises/guarantees or unfair representations of leniency), or instead, whether the advice was simply a miscalculation or erroneous sentence estimation. Here, Mr. Kidd makes no allegation that Mr. Alien made unfair representations concerning the judge's probable leniency. Also, petitioner has not alleged that Mr. Alien falsely represented to him that the state court or prosecution promised petitioner a specific sentence by accepting the guilty plea. The more difficult question is whether counsel's advice concerning Mr. Kidd's criminal history rose to the level of a promise or guarantee that coerced him into accepting the guilty plea. The court has no doubt, upon review of the record, that Mr. Alien miscalculated petitioner's criminal history, leading him to believe he would receive a substantially lower term of incarceration at sentencing. The court is also convinced that Mr. Kidd was induced, in part, to accept the plea agreement based on the advice of counsel. However, there is abundant evidence in the record that suggests that counsel's advice was nothing more than an erroneous estimate or miscalculation, not a promise or a guarantee. First, there is no evidence or allegation that Mr. Alien characterized his criminal history calculation as a promise or guarantee. In fact, Mr. Alien stated in his certificate of counsel (attached to the plea tender) that he made no promises to the defendant concerning the sentence the court may impose. See Certificate of Counsel at ¶ 4, attached to Tender of Plea of Guilty or No Contest. Second, Mr. Kidd and defense counsel have consistently maintained that he was simply given inaccurate "advice." For example, in his original motion to withdraw the plea, Mr. Kidd alleged that he was "improperly advised with regards to his potential sentence by Counsel." See Motion to Withdraw Plea at ¶ 2. In the hearing on that motion, Mr. Alien admitted only that Mr. Kidd had grounds to believe that he was "improperly advised." When the state court permitted Mr. Alien to withdraw as counsel, it appointed Ralph J. De Zago to represent Mr. Kidd. Mr. De Zago renewed the motion to withdraw Mr. Kidd's plea. In that motion, Mr. Kidd again alleged only that he was "advised" by Mr. Alien that he would be scored as a category C for criminal history purposes. Similarly, in his § 2254 petition, Mr. Kidd's challenges are based upon the inaccurate advice he received from counsel. While perhaps not overwhelmingly conclusive of the issue, the record certainly establishes that it is not an unreasonable application of Federal Law to characterize Mr. Alien's advice as an erroneous estimate or miscalculation, instead of a promise or a guarantee that would undermine the validity of the plea agreement. Fields, 277 F.3d at 1213-14 (trial counsel's projections characterized as erroneous sentence estimate that did not invalidate plea where trial counsel never told petitioner they had a promise or guarantee that by pleading guilty he would not receive a death sentence); see also United States v. Kerns, 53 Fed. Appx. 863, 866, 2002 WL 31820953, at *2 (10th Cir. Dec. 17, 2002) (finding no legitimate challenge to voluntariness or validity of guilty plea where defendant did not allege that his attorney's representations were anything but mere predictions as to the length of his sentence).
Additionally, prior to accepting the guilty plea, the state trial court advised Mr. Kidd that he could be sentenced to a term of incarceration ranging from 38 to 172 months on the aggravated battery charge alone. The judge also asked Mr. Kidd whether he was aware of any other terms or conditions affecting his plea agreement that had not been reduced to writing. Mr. Kidd responded that there were no other terms or conditions. "This colloquy between a judge and a defendant before accepting a guilty plea is not pro forma and without legal significance . . . Rather, it is an important safeguard that protects defendants from incompetent counsel or misunderstandings . . . At these collogues, judges take the time to insure that defendants understand the consequences of a guilty plea." Fields, 211 F.3d at 1214. Had Mr. Kidd misunderstood or been misinformed about the possibility of receiving a certain term of incarceration, the colloquy would have alerted him to that fact. Id.
In factually analogous situations, where counsel miscalculated or erroneously estimated the length of a defendant's history, the Tenth Circuit has consistently characterized such error as a miscalculation that neither renders a plea involuntary nor counsel's performance deficient. See, e.g., Estrada, 849 F.2d 1304 (counsel's assurances that defendant would not receive "much of a sentence," where defendant was actually sentenced to a term of 12 years in prison, did not rise to the level of constitutionally deficient counsel); Wellnitz v. Page, 420 F.2d 935 (10th Cir. 1970) (guilty plea was voluntary even though counsel informed defendant that he would "get 25 years" and defendant was actually sentenced to 100 years); United States v. Zambrano-Sanchez, 182 F.3d 934, 1999 WL 339694, at *3 (10th Cir. 1999) (counsel allegedly estimated a sentence of five to six and one-half years and the defendant received 151 months). As such, the court cannot conclude that the state court's adjudication was contrary to nor an unreasonable application of Federal Law as determined by the Supreme Court and elaborated upon by this Circuit.
IT IS THEREFORE ORDERED BY THE COURT that Mr. Kidd's petition for a writ of habeas corpus pursuant to § 2254 (Doc. 1) is denied.
IT IS SO ORDERED.