Nunes v. Mueller

Decision Date01 December 2003
Docket NumberNo. 03-15509.,03-15509.
Citation350 F.3d 1045
PartiesJeffrey Welton NUNES, Petitioner-Appellee, v. G.A. MUELLER, Warden, Respondent-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Morris Beatus, Deputy Attorney General, San Francisco, California, argued the case for the respondent-appellant and was on the briefs. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General and Peggy S. Ruffra, Supervising Deputy Attorney General were also on the briefs.

Daniel J. Broderick, Chief Assistant Federal Defender, San Francisco, California, argued the case for the petitioner-appellee and was on the brief. Quin Denvir, Federal Defender, Sacramento, California, was also on the brief.

Appeal from the United States District Court for the Northern District of California; Laurence K. Karlton, District Judge, Presiding. D.C. No. CVS-98-0106-LLK.

Before: REINHARDT and GRABER, Circuit Judges, and SHADUR,* District Judge.

Opinion by Judge SHADUR; Dissent by Judge GRABER.

OPINION

SHADUR, District Judge:

Folsom State Prison Warden Glenn A. Mueller ("Mueller") appeals the district court's order granting habeas corpus relief under 28 U.S.C. § 22541 to Folsom prisoner Jeffrey Welton Nunes ("Nunes"). That relief was predicated on Nunes' claim that he had received ineffective assistance of counsel during the plea bargaining process, and it resulted in a direction to the state (1) to vacate Nunes' conviction for second degree murder and (2) to reinstate its plea offer of voluntary manslaughter. We agree with the district court that Nunes' counsel failed to provide constitutionally adequate assistance, but we find that the relief granted should be modified: We remand to the district court for the entry of an order releasing Nunes unless the state offers him the same terms that he would have received under the original plea offer, and then for the conduct of further proceedings consistent with this opinion.

Background

On August 28, 1989 Nunes was charged with one count of murder and three counts of assault with a firearm for the 1988 shooting of a man he found sleeping in his estranged wife's bedroom. In Nunes' first trial in 1989 the jury hung on the murder charge but found Nunes guilty of one count of assault with a firearm, one count of personal use of a firearm and two misdemeanor counts of exhibiting a firearm. Nunes was retried on the murder charge in 1990, and that second trial also ended with a hung jury, although the jury did unanimously decide that Nunes was not guilty of first degree murder. In a third trial in 1991 the jury found Nunes guilty of second degree murder and subject to the firearm use enhancement. That conviction was later reversed on appeal because the trial judge had spoken to the deliberating jury outside the presence of Nunes and his attorney.

On July 22, 1993, before Nunes' fourth trial, the prosecutor made a plea offer to Nunes' defense attorney Michael Brady ("Brady") that Nunes plead guilty to voluntary manslaughter, waive all presentence credits on that voluntary manslaughter charge and serve a sentence of 11 years. In exchange the prosecutor would drop the second-degree murder charge, the firearm enhancement would be dismissed and Nunes would get full credit for the time he had already served toward his assault conviction. Brady then met with Nunes for just five minutes to discuss the plea offer. Nunes claims that Brady told him incorrectly that he was being offered a 22-year sentence that included the firearm enhancement and waived all presentence credits for the time previously served. Nunes further claims that he asked Brady to clarify the offer, but in the meantime Brady told the prosecutor that Nunes had rejected the plea bargain.

At some point after that meeting and before his trial, Nunes' mother told him that the actual plea offer was different from what he had thought. Though Nunes tried to reach Brady to clarify the offer, he was unable to do so. It was not until the day the fourth trial began that Nunes was able to talk with Brady — after the offer had already expired. In the fourth trial Nunes was again convicted of second-degree murder and received a 15-years-to-life sentence, with a two-year enhancement for the use of a firearm.

Nunes challenged his conviction on direct appeal and then by a state court petition for a writ of certiorari. There Nunes claimed among other things that Brady had provided ineffective assistance of counsel by failing to inform him fully of the actual terms of the plea offer made by the prosecution. That claim was rejected by the California Court of Appeals, which found it unnecessary to hold an evidentiary hearing because Nunes had not made out a prima facie case for prejudice — "that but for counsel's deficient performance, the defendant would have accepted the plea bargain."

After the state courts had rejected his claim, in 1998 Nunes filed a pro se Section 2254 petition in the federal district court for the Eastern District of California.2 After Mueller answered the petition, the magistrate judge held a two-day evidentiary hearing on Nunes' ineffective assistance claim. On November 20, 2002 the magistrate judge recommended that Nunes' petition be granted on that ground, concluding that the state court ruling was (1) erroneous and (2) contrary to federal law as clearly established in Strickland v. Washington, 466 U.S. 668, 690-93, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Finding that Nunes had shown both that his counsel's conduct fell outside the range of professional competence and that he had suffered prejudice as a result, the magistrate judge recommended that the district court grant Nunes' petition in part and order the state (1) to vacate his second degree murder conviction and (2) to reinstate the plea offer to voluntary manslaughter.

On January 8, 2003 the district court adopted the magistrate judge's findings and recommendations in full. Mueller filed a timely notice of appeal and moved for a stay pending appeal. On May 20, 2003 a panel of this court issued an order granting the stay and expediting this appeal.

Mueller raises three issues on appeal. First, he contends that the state court's decision rejecting Nunes' ineffective assistance claim was not contrary to clearly established law because unless Nunes lost a substantive or procedural right (and Mueller claims he did not), Nunes was not prejudiced by his attorney's shortcomings. Second, Mueller argues that the state court reasonably applied the Strickland analysis in concluding that Nunes failed to establish that he would have accepted the plea had it been properly communicated to him. Third, Mueller claims that the district court was out of bounds in any event when it ordered the state to give Nunes the same deal that it had offered him before the trial.

Standard of Review

We review the district court's decision to grant habeas corpus relief de novo (Evanchyk v. Stewart, 340 F.3d 933, 939 (9th Cir.2003)) and its findings of fact for clear error (McClure v. Thompson, 323 F.3d 1233, 1240 (9th Cir.2003)). We may affirm the district court's decision on any ground supported by the record, even if it differs from the district court's rationale (Paradis v. Arave, 240 F.3d 1169, 1175-76 (9th Cir.2001)).

Section 2254(d), as revised by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"),3 instructs federal courts not to grant a state prisoner's habeas petition as to claims that a state court "adjudicated on the merits" unless the adjudication (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Ineffective assistance claims are generally resolved under the first standard, which controls both pure questions of law and mixed questions of law and fact, but the second standard applies to the extent a habeas petition challenges any factual determinations of the state court (Davis v. Woodford, 333 F.3d 982, 990 (9th Cir.2003)).

"Clearly established Federal law," as used in Section 2254(d)(1), refers to "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision" (Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003)). As to whether a state court's decision is "contrary to" clearly established law, that is a function of whether that court either (1) applied the wrong authority or (2) applied the right authority but arrived at a "diametrically different" result despite materially indistinguishable facts (Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Alternatively, the state court would have "unreasonably applied" the law if it identified the right legal principle but applied it in an objectively unreasonable way or if it (unreasonably) extended the law to a context where it should not apply (Alvarado v. Hickman, 316 F.3d 841, 852 (9th Cir.2002), citing Williams, 529 U.S. at 404-06, 120 S.Ct. 1495). It is not enough for us to determine in our independent judgment that the state court decision was incorrect or erroneous — instead the important question is whether the state court's decision was "objectively unreasonable" (Wiggins v. Smith, ___ U.S. ___, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003)).

Right to Counsel During Plea Bargaining

Strickland v. Washington — the most sensible place to begin evaluating any claim for ineffective assistance of counsel — teaches that the benchmark for assessing such claims must be "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having...

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1 books & journal articles
  • Deal or no deal? Remedying ineffective assistance of counsel during plea bargaining.
    • United States
    • Yale Law Journal Vol. 120 No. 6, April 2011
    • April 1, 2011
    ...scheme would be declared unconstitutional. Id. (95.) Id. at 929-30. (96.) Id. at 941-42. (97.) Id. at 943; see also Nunes v. Mueller, 350 F.3d 1045, 1057 (9th Cir. 2003) (ordering that the defendant be released unless the state offered the same plea bargain); United States v. Blaylock, 20 F......

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