Opinion
C22-5363-BJR-MLP
02-10-2023
AUSTIN RICHARD MOORES NELSON, Petitioner, v. DANIEL WHITE, Respondent.
REPORT AND RECOMMENDATION
MICHELLE L. PETERSON UNITED STATES MAGISTRATE JUDGE
Petitioner Austin Richard Moores Nelson is a state prisoner who is currently confined at the Monroe Correctional Complex in Monroe, Washington. He has filed an amended petition for writ of habeas corpus under 28 U.S.C. § 2254 seeking relief from his 2016 Pierce County Superior Court judgment and sentence. (Am. Pet. (dkt. # 7).) Respondent filed an answer to the petition and submitted relevant portions of the state court record. (Answer (dkt. # 12); State Ct. Rec. I and II (dkt. ## 13-14).) Petitioner filed a response to Respondent's answer.(Resp. (dkt. # 28).)
Petitioner filed a late response along with a motion for extension of time. (Dkt. ## 27-28.) Based on good cause shown, and that Respondent has no objection (dkt. # 29), the Court GRANTS Petitioner's motion for extension of time (dkt. # 27) and accepts the late-filed response.
This Court, having reviewed the petition, all briefing of the parties, and the balance of the record, concludes that Petitioner's amended petition for writ of habeas corpus should be denied and this action should be dismissed with prejudice.
I. BACKGROUND
The Washington Court of Appeals, in Petitioner's personal restraint proceedings, summarized the facts underlying Petitioner's convictions as follows:
In September 2015, 19-year-old Austin Nelson was dating the 15-year-old daughter of Teresa Ryan. After Mrs. Ryan learned of the relationship, she spoke to Mr. Nelson and told him to stay away from her daughter. On January 15, 2016, after Mrs. Ryan's daughter ended their relationship, Mr. Nelson damaged her car. On January 17, 2016, Mr. Nelson posted a video on social media of himself and Mrs. Ryan's daughter having sex. On January 18, Mr. Nelson went to the home of Teresa and Brent Ryan and “with premeditated intent” shot and killed Teresa Ryan outside her home. After shooting Mrs. Ryan, Mr. Nelson entered the Ryan family home and intentionally shot and killed the family dog.
At the time she was killed, Mrs. Ryan was employed in the clerk's office at Pierce County District Court.
Mr. Nelson was appointed an attorney and the services of an investigator. In September 2016, Mr. Nelson pleaded guilty as charged without the benefit of an agreed recommendation. At the time of sentencing, the parties agreed that the standard range sentence for the first degree murder conviction was 281 to 374 months, with the remaining sentences running concurrently. The parties also agreed that a firearm enhancement would apply to the convictions for murder, burglary, and animal cruelty and that these enhancements would run consecutive to the underlying sentences and each enhancement. According to his statement on plea of guilty, Mr. Nelson understood that the prosecuting attorney would recommend the maximum allowable in-custody standard range sentence of 512 total months.
At sentencing, the court reviewed Mr. Nelson's statement of defendant on plea of guilty. After accepting Mr. Nelson's plea, the court considered statements from the prosecutor, victims, and Mr. Nelson. The court noted that it had read 24 victim impact statements and heard oral statements from the victim's sister and coworker at district court. The State recommended the maximum standard range as indicated in the statement on plea of guilty and asked the court to consider the victim impact statements stating “the defendant committed a premeditated murder, killing a woman whose only crime was to protect her daughter.” Report of Proceedings (RP) at 18-19.
Mr. Nelson and his attorney argued for an exceptional sentence of 419 months, based on mental health issues and Miller'sapplication to Mr. Nelson's youth. To ensure proportionality to other similarly situated defendants' sentences and to conform to the “Real Facts Doctrine,” defense counsel asked the court to disregard the victim impact statements and the fact that the victim had worked in the Tacoma District Court Building. Id. at 21. Defense counsel stressed that Mr. Nelson insisted on taking responsibility for his actions and was “eager to plead out to the original Information.” Id. at 22. Even after the State added an extra charge, “He stepped up and pled as charged to everything.” Id. Mr. Nelson personally repeated his goal to take full responsibility. Id. at 24-25.
The trial court accepted Mr. Nelson's plea, stating:
I don't know what the evidence is in this case....
I didn't know Ms. Ryan. I understand she worked in the District Court, worked in the same building. To my knowledge, I never met her. I didn't know her. The letters I read, she had a lot of people that cared an awful lot about her. You, in many ways, are a parent's worst nightmare and became her family and friends' worst nightmare. The involvement with the daughter, being told not to have a relationship and then basically wait for her and kill her, go into the house and end up killing the dog as well.
I appreciate the materials [defense counsel] gave to me. I did read them.
Resp't Br. App. “E” at 25-26. The court's comments do not focus on the co-worker statements, and the record contains no indication that the judge knew any of the victim's co-workers. The court concluded that the high-end was appropriate, adopted the stipulated offender score information, and sentenced Mr. Nelson according to the State's recommendation of 512 months, calculated by adding 374 months from count 1 to the sentencing enhancements from counts 1, 2 and 3. Id. at 26-28; Resp't Br. App. “A” at 1-5.
Miller v. Alabama, 567 U.S. 460, 480, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
(State Ct. Rec. I (dkt. # 13), Ex. 2 at 2-4.) Petitioner was convicted of murder in the first degree, burglary in the first degree, animal cruelty in the first degree, and malicious mischief in the second degree. (Id., Ex. 1.) Firearm enhancements were imposed on the first three counts. (Id.) Although the underlying sentences were concurrent, the three enhancements ran consecutively to them and to each other. (Id., Ex. 2 at 4.) Petitioner “filed an untimely direct appeal” to the Washington Court of Appeals, which was dismissed. (Id., Ex. 2 at 4-5.)
On July 19, 2017, proceeding pro se, Petitioner filed a personal restraint petition in the Washington Court of Appeals. (State Ct. Rec. I, Ex. 3.) Petitioner identified six claims in his petition: (1) a firearm enhancement cannot apply to the animal cruelty count; (2) his guilty plea was involuntary because he was misinformed that his sentence would be increased based on the unlawful firearm enhancement; (3) he was deprived of the right to an unbiased judge because the victim had worked in the same building as the judge and the judge may have known some of her coworkers who provided victim impact statements; (4) the judge erred by imposing an exceptional sentence without entering written findings of fact and conclusions of law; (5) the judge erred by failing to find that any of the counts constituted the same criminal conduct; and (6) Petitioner was deprived of effective assistance of counsel during plea bargaining because his counsel failed to recognize any of these issues and pressured him to accept a plea bargain with zero benefit. (Id.) Petitioner argued he “should be allowed to demand the specific performance [or] the withdrawal of his plea. (Id., Ex. 3 at 14.) Petitioner was later appointed counsel, who filed a supplemental brief. (Id., Ex. 2 at 5; see State Ct. Rec. II (dkt. # 14), Ex. 12.) Petitioner's supplemental brief, filed January 10, 2020, additionally identified a claim that counsel was ineffective by misadvising Petitioner of the range of punishment he faced as initially charged. (State Ct. Rec. II, Ex. 12 at 22-24.) Petitioner argued he “should have the opportunity to accept or refuse a plea offer without the illegal firearm enhancement.” (Id. at 26.)
On August 19, 2021, the Court of Appeals granted Petitioner's petition in part, holding that the firearm enhancement was erroneous as applied to the animal cruelty charge, and remanded for resentencing but declined to allow Petitioner to withdraw his plea. (State Ct. Rec. - I, Ex. 2 at 6-12, 20.) The court denied the claims of error and bias by the trial judge, and affirmed the convictions. (Id. at 12-17, 20.) The court declined to reach the merits of Petitioner's claim that his “trial attorney was ineffective in misadvising him of the standard sentencing range on his original charges,” concluding that the claim was untimely because it “was not raised in Mr. Nelson's original petition. Instead, it was first raised by Mr. Nelson's attorney in the supplemental brief filed more than three years after Mr. Nelson was sentenced.” (Id. at 18.) Petitioner filed a motion for reconsideration, which was denied. (State Ct. Rec. II, Exs. 15-16.)
Petitioner moved for discretionary review of the Court of Appeals' decision in the Washington Supreme Court, and the Supreme Court denied Petitioner's motion on January 26, 2022. (State Ct. Rec. II, Exs. 17, 20.) The court rejected Petitioner's argument that he must be returned to the pre-plea stage because he “failed to show he would rationally have insisted on going to trial had he been correctly informed of the inapplicability of the firearm enhancement.” (Id., Ex. 20 at 2-3.) The court also held that the misadvice claim was untimely, rejecting Petitioner's argument that his general claim of ineffective assistance during plea bargaining preserved “specific manifestations of that claim[.]” (Id., Ex. 20 at 3-4 (“Mr. Nelson first made this argument in a supplemental brief filed after the one-year time limit on collateral relief had expired.”).) Petitioner filed a motion to modify the ruling, which was denied. (Id., Exs. 21-22.)
The Court of Appeals issued a certificate of finality in Petitioner's personal restraint proceeding on May 4, 2022. (State Ct. Rec. II, Ex. 23.) Petitioner now seeks federal habeas review of his state court convictions.
II. GROUNDS FOR RELIEF
As grounds for relief in his amended federal habeas petition, Petitioner contends he was denied his right to effective assistance of counsel during plea negotiations because:
1. Counsel misadvised Petitioner as to the sentencing range if he pleaded guilty as originally charged.
2. Counsel failed to recognize that the firearm enhancement on the animal cruelty charge was unlawful.
3. Counsel pressured Petitioner to accept a plea bargain.
(Am. Pet. at 36-38.) As a remedy, Petitioner contends he is entitled to be returned to the plea negotiations stage. (Id. at 37-38.)
III. DISCUSSION
Respondent contends Petitioner failed to properly exhaust his first claim and that the claim is now procedurally barred under state law. (Answer at 8-16.) Respondent concedes that Petitioner properly exhausted his second and third claims by fairly presenting the claims to the Washington Court of Appeals in his personal restraint petition (State Ct. Rec. I, Ex. 3), and to the Washington Supreme Court in his motion for discretionary review from the denial of his personal restraint petition (State Ct. Rec. II, Ex. 17). Respondent argues, however, that the claims were reasonably adjudicated by the Washington Court of Appeals and, thus, Petitioner is not entitled to relief on these claims. (Answer at 19-26.) Accordingly, Respondent contends Petitioner's federal habeas petition should be dismissed.
A. Exhaustion and Procedural Default
Petitioner asserts in his first ground for relief that his “trial counsel misadvised Mr. Nelson regarding the range of punishment he faced if he pleaded guilty as originally charged. This made the latter plea offer that Mr. Nelson accepted seem like an improvement, when in fact it was not.” (Am. Pet. at 37.) Respondent argues Petitioner did not fairly present this claim to the Washington Supreme Court and thus it is now procedurally barred. (Answer at 7.) In his Response, Petitioner argues he “has indeed exhausted this claim in the state court” but only references his claim regarding the firearm enhancement. (Resp. at 2.)
1. Legal Standards
A state prisoner is required to exhaust all available state court remedies before seeking a federal writ of habeas corpus. 28 U.S.C. § 2254(b)(1). The exhaustion requirement is a matter of comity, intended to afford the state courts “an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks and citations omitted). In order to provide the state courts with the requisite “opportunity” to consider his federal claims, a prisoner must “fairly present” his claims to each appropriate state court for review, including a state supreme court with powers of discretionary review. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995), and O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).
“In order to ‘fairly present' an issue to a state court, a petitioner must ‘present the substance of his claim to the state courts, including a reference to a federal constitutional guarantee and a statement of facts that entitle the petitioner to relief.'” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (quoting Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009)). A habeas petitioner who fails to meet a state's procedural requirements for presenting his federal claims deprives the state courts of the opportunity to address those claims in the first instance. See Coleman v. Thompson, 501 U.S. 722, 732 (1991).
When a prisoner defaults on 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. Id. at 750. If the last state court to decide a federal claim clearly and expressly states that its judgment rests on a state procedural bar, there is a procedural default for purposes of federal habeas review. Harris v. Reed, 489 U.S. 255, 263 (1989).
Fair presentation requires that a petitioner present to the state courts the same claim, including both the operative facts and the federal legal theory, upon which his claim is based. See, e.g., Picard, 404 U.S. at 275-76; see also Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). “[P]etitioners must plead their claims with considerable specificity before the state courts in order to satisfy the exhaustion requirement.” Rose v. Palmateer, 395 F.3d 1108, 1111 (9th Cir. 2005).
2. Analysis
The Court of Appeals declined to address Petitioner's claim that counsel misadvised him, stating that “[b]ecause it was filed after the one-year time limit, the claim is untimely and will not be considered.” (State Ct. Rec. I, Ex. 2 at 18 (citing Wash. Rule of Appellate Procedure (“RAP”) 16.8(e)).) The appellate rule provides that petition amendments “raising new grounds” are subject to the one-year time limit in RCW 10.73.090. RAP 16.8(e); see RCW 10.73.090 (“No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.”).
The Supreme Court affirmed on the grounds that “Mr. Nelson first made this argument in a supplemental brief filed after the one-year time limit on collateral relief had expired.” (State Ct. Rec. II, Ex. 20 at 3.) The court rejected Petitioner's argument that, “because he generally argued in his original petition that counsel was ineffective in the plea bargaining process, he timely asserted this claim.” (Id. at 4.) -
The Ninth Circuit has recognized that the state time bar statute invoked by the state courts to bar the claim that Petitioner's counsel misadvised him, i.e., RCW 10.73.090, provides an independent and adequate state procedural ground to bar federal habeas review. See Casey v. Moore, 386 F.3d 896, 920 (9th Cir. 2004); Shumway v. Payne, 223 F.3d 982, 989 (9th Cir. 2000). Because the state courts concluded that the claim was procedurally barred pursuant to an independent and adequate state procedural rule, there is a procedural default for purposes of federal habeas review.
Petitioner contends in his recently filed response to Respondent's answer that:
This claim was presented in a timely manner. The Court of Appeals stated, “[s]ince we have already granted Mr. Nelson's request for resentencing, we decline to consider whether counsel's failure to spot the issue amounts to ineffective assistance of counsel.”
(Resp. at 2.) However, this argument addresses claims related to the firearm enhancement, not the issue of misadvice as to sentencing range. Previously, in his motions for reconsideration before the Court of Appeals and for discretionary review before the Supreme Court, Petitioner argued his claim was timely raised because “misadvice about the firearm enhancement [and] about the range of punishment [were] both ‘part and parcel' of the claim of ineffective assistance during plea bargaining.” (State Ct. Rec. II, Ex. 15 at 7; see also id., Ex. 17 at 28-32.)
Although Petitioner's original personal restraint petition raised claims of ineffective assistance of counsel at the plea negotiation stage based on counsel's failure to recognize the unlawful firearm enhancement and pressuring Petitioner, Petitioner did not timely raise the specific issue of misadvising him of the standard sentencing range on the original charges. (See State Ct. Rec. I, Ex. 3 at 11-13, 19.) Similar circumstances were found in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1148-49 (9th Cir. 2007). In that case the Ninth Circuit held that, although the petitioner exhausted a claim of ineffective assistance of counsel based on counsel's failure to object to the prosecutor testifying, he failed to exhaust a claim based on counsel's failure to file a motion to recuse the prosecutor. Kelly, 315 F.3d at 1068. Here, the Court cannot find exhaustion of the misadvice claim merely because Petitioner raised other claims of ineffective assistance of counsel based on other actions of counsel during the plea negotiation stage.
Because the state courts concluded that the misadvice claim first asserted in the supplemental brief submitted by Petitioner's attorney to the Court of Appeals was procedurally barred pursuant to an independent and adequate state procedural rule, there is a procedural default for purposes of federal habeas review.
When a state prisoner defaults on 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 can demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. To satisfy the “cause” prong of the cause and prejudice standard, a petitioner must show that some objective factor external to the defense prevented him from complying with the state's procedural rule. Id. at 753 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). To show “prejudice,” a petitioner “must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). Only in an “extraordinary case” may the habeas court grant the writ without a showing of cause or prejudice to correct a “fundamental miscarriage of justice” where a constitutional - violation has resulted in the conviction of a defendant who is actually innocent. Murray, 477 U.S. at 495-96.
Respondent argues in his answer that Petitioner has not made the requisite showing to excuse his procedural default. (Answer at 13-16.) The Court agrees. Petitioner's response does not address the issue of cause or prejudice.The Court observes as well that Petitioner makes no showing that failure to consider his defaulted claim will result in a fundamental miscarriage of justice. Petitioner therefore fails to demonstrate that his unexhausted claim is eligible for federal habeas review. Accordingly, Petitioner is not entitled to relief on this claim.
Previously, in his motion for reconsideration before the Court of Appeals, Petitioner argued that equitable tolling applied because, when he filed his personal restraint petition, “he did not yet have his attorney file [containing] evidence that Mr. Nelson's trial attorney had told him the wrong sentencing ranges[.]” (State Ct. Rec. II, Ex. 15 at 8-10.) To the extent that the lack of the file may be construed as a reason to find cause for the default, Petitioner has not shown that the file was necessary because, as he stated in his supplemental brief before the Court of Appeals and his motion for discretionary review before the Supreme Court, “Mr. Nelson himself similarly recalls that his attorney told him his ‘low range sentence would be 47 4 years[.]'” (Id., Exs. 12 at 23, 17 at 25-26.) Because the facts underlying his claim were within his knowledge, there is no indication that Petitioner was prevented from complying with the State's procedural rules by some objective factor external to his defense. Thus, cause for his procedural default has not been established.
B. Properly Exhausted Claims
1. Federal Habeas Standard, 28 U.S.C. § 2254
Federal habeas corpus relief is available only to a person “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A habeas corpus petition may be granted with respect to any claim adjudicated on the merits in state court only if the state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or if the decision was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).
Under the “contrary to” clause, a federal habeas court may grant the writ only 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 has on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the “unreasonable application” clause, a federal habeas court may grant the writ only if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. See id. at 407-09.
The Supreme Court has made clear that a state court's decision may be overturned only if the application is “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). The Supreme Court has also explained that “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Clearly established federal law means “the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.” Lockyer, 538 U.S. at 71-72. “If no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court, the state court's decision cannot be contrary to or an unreasonable application of clearly established federal law.” Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) (citing Dows v. Wood, 211 F.3d 480, 485-86 (9th Cir. 2000)).
In considering a habeas petition, this Court's review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011). If a habeas petitioner challenges the determination of a factual issue by a state court, such determination shall be presumed correct, and the applicant has the burden of - rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2. Ineffective Assistance of Counsel Standard The Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). “The essence of an ineffectiveassistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.” Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). Claims of ineffective assistance of counsel are evaluated under the two-prong test set forth in Strickland. Under Strickland, a defendant must prove (1) that counsel's performance was deficient and, (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687.
With respect to the first prong of the Strickland test, a petitioner must show that counsel's performance fell below an objective standard of reasonableness. Id. at 688. Judicial scrutiny of counsel's performance must be highly deferential. Id. at 689. “A fair assessment of attorney performance requires that every effort be made 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.” Id.
The second prong of the Strickland test requires a showing of actual prejudice related to counsel's performance. In order to establish prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. The reviewing court need not address both components of the inquiry if an insufficient showing is made on one component. Id. at 697. -
While the Supreme Court established in Strickland the legal principles that govern claims of ineffective assistance of counsel, it is not the role of the federal habeas court to evaluate whether defense counsel's performance fell below the Strickland standard. Harrington, 562 U.S. at 101. Rather, when considering an ineffective assistance of counsel claim on federal habeas review, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable.” Id. As the Supreme Court explained in Harrington, “[a] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.
3. Analysis Petitioner asserts in his federal habeas petition that he was denied his constitutional right to effective assistance of counsel during plea negotiations when his trial counsel failed to recognize that the firearm enhancement on the animal cruelty charge was unlawful and when counsel pressured Petitioner to accept a plea bargain. (Am. Pet. at 36-37.) Petitioner contends the remedy he is entitled to is a return to the plea negotiation stage. (Id. at 37-38.)
i. Firearm Enhancement
The Washington Court of Appeals found that the firearm enhancement was unlawful and remanded for resentencing. (State Ct. Rec. I, Ex. 2 at 6-7, 20.) However, the court rejected Petitioner's argument that he was entitled to return to the plea negotiation stage because his trial counsel had been ineffective for failing to recognize the unlawfulness of the enhancement.
Mr. Nelson argues that his attorney was ineffective in several respects. First, he argues that his attorney was ineffective for failing to object to the application of the firearm enhancement to an unranked felony. We note that even if Mr. Nelson is correct, the remedy is to place him back in the position he would have been without the error. State v. Drath, 7 Wn.App. 2d 255, 270, 431 P.3d 1098 (2018). Since we have already granted Mr. Nelson's request for resentencing, we decline to consider whether counsel's failure to spot this issue amounts to ineffective assistance of counsel. -
(Id. at 17-18.)
The Supreme Court held that, because the sentencing error was remedied, Petitioner had not shown prejudice due to ineffective assistance of counsel.
When the voluntariness of a guilty plea is directly challenged on the basis of misinformation as to sentencing consequences, prejudice on collateral review is measured by whether it is more likely than not the petitioner would have refused to plead guilty and would have insisted on going to trial had the petitioner been correctly informed, with this question examined under an objective rational person standard that ask[s] whether a rational person, correctly informed, would more likely than not have chosen to go to trial rather than accept the plea offer. [State v.] Buckman, 190 Wn.2d [51,] 65-69 [(Wash. 2018)]. When the challenge is made by way of a claim of ineffective assistance of counsel, the standard is similar: whether, but for counsel's error, there is a reasonable probability the petitioner would have not pleaded guilty and would have insisted on going to trial, the inquiry again being whether it would have been rational under the circumstances to reject the plea offer. State v. Sandoval, 171 Wn.2d 163, 174-75, 249 P.3d 1015 (2011). In relation to Mr. Nelson's claim of involuntariness, the Court of Appeals held that Mr. Nelson failed to show he would rationally have insisted on going to trial had he been correctly informed of the inapplicability of the firearm enhancement. Although the standard in a voluntariness challenge is “more likely than not,” while the standard in an ineffective assistance claim is “reasonable probability,” Mr. Nelson does not show that an assessment of the objective rationality of rejecting the plea offer under the latter standard would result in a different conclusion.
Mr. Nelson primarily argues that when counsel is ineffective in these circumstances, the petitioner must be returned to the preplea stage and proceed under a correct understanding of the potential sentence; that is, returned to the position the petitioner would have been in had counsel not been ineffective, and from that position re-engage in plea negotiations. Mr. Nelson relies mainly on a federal court decision that he did not cite in his briefing in the Court of Appeals, Johnson v[.] Uribe, 700 F.3d 413 (9th Cir. 2012). The court in that collateral challenge did hold that the proper remedy when counsel misinforms an offender of sentencing consequences during the plea process is a return to the preplea stage, not resentencing. Id. at 427-28. But the court did not apply the standard of prejudice employed by the courts of this state, and that decision is not binding on this state's courts in any event. Feis v. King County Sheriff's Dep't, 165 Wn.App. 525, 547, 267 P.3d 1022 (2011). Nor is a claimed conflict with a lower federal court decision a ground for this court's review.
(State Ct. Rec. II, Ex. 20 at 2-3.)
Petitioner has not shown that the state court's application of the prejudice prong of the Strickland standard was unreasonable, nor has he identified any United States Supreme Court case law that mandates the outcome he seeks. In his Amended Petition, Petitioner does not address the issue of prejudice other than to note that the state courts “concluded that he had not shown the requisite prejudice[,]” and he makes no argument beyond restating that he should be “returned to the position he would have been in but for counsel's ineffective assistance[,]” i.e., “the plea negotiation stage[.]” (Am. Pet. at 37.)
In his Response, Petitioner again contends that “Mr. Nelson's case is like Uribe.” (Resp. at 9.) However, as the Washington Supreme Court explained, Uribe is a Ninth Circuit case, and that decision is not binding on the state courts. (State Ct. Rec. II, Ex. 20 at 3.) “[A]lthough circuit law may be persuasive in determining whether a state court has unreasonably applied Supreme Court law, ‘only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied[.]'” Brewer, 378 F.3d 957 (quoting Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003)). Petitioner identifies no Supreme Court precedent holding that resentencing is an inadequate remedy in circumstances resembling his.
Petitioner's restatement of arguments raised in the state courts is insufficient to demonstrate that the state court decision is contrary to, or constitutes an unreasonable application of, United States Supreme Court precedent, or that the decision is based upon an unreasonable determination of the facts. His petition for federal habeas relief on this ground should therefore be denied.
ii. Coercion
Petitioner contends his trial counsel provided ineffective assistance by “pressur[ing] Mr. Nelson to plead guilty to [the] amended charges, which appeared to have a lesser range of punishment than the original charges.” (Am. Pet. at 37-38.) To the extent Petitioner's claim is - based on being misadvised as to the sentencing range of the original charges, as explained above, the claim is procedurally barred.
To the extent Petitioner's claim is based on undue coercion, the Court of Appeals rejected his claim under the performance prong of Strickland.
Mr. Nelson fails to demonstrate that he was coerced into pleading guilty without a benefit. According to his own affidavit, he received and was able to review his paperwork for more than a week before his plea and sentencing. Each page of the statement of defendant on plea of guilty contains the hand-written initials of Mr. Nelson and his attorney. In response to the judge's questions, Mr. Nelson affirmed that his attorney had gone over the document with him, and he did not have any questions. He specifically denied that he was pleading guilty in response to any threats or coercion. The decision to plead guilty without the benefit of a favorable agreement was strategic. Mr. Nelson told the court that he was pleading straight up to accept responsibility in the hopes that the court would accept his argument for an exceptional sentence below the standard range. On this record, we do not find Mr. Nelson's trial attorney ineffective.
(State Ct. Rec. I, Ex. 2 at 19-20.)
Petitioner fails to demonstrate that the state court's application of the Strickland standard was erroneous or that it was unreasonable for the state court to have concluded that Petitioner did not establish deficient performance under that standard. That Petitioner disagrees with the state court's conclusion on the issue of deficient performance is simply not sufficient to entitle him to relief. His petition for federal habeas relief on this ground should therefore be denied.
C. Certificate of Appealability
A petitioner seeking post-conviction relief under § 2254 may appeal a district court's dismissal of his federal habeas petition only after obtaining a certificate of appealability from a district or circuit judge. A certificate of appealability may issue only where a petitioner has made “a substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard “by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Under this standard, this Court concludes that Petitioner is not entitled to a certificate of appealability.
IV. CONCLUSION
Based on the foregoing, the Court recommends that Petitioner's amended petition for writ of habeas corpus (dkt. # 7) be denied and this action be dismissed with prejudice. This Court also recommends that a certificate of appealability be denied. A proposed order accompanies this Report and Recommendation.
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within twenty-one (21) days of the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar for the third Friday after they are filed. Responses to objections may be filed within fourteen (14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on March 10, 2023.