Washington v. Lampert

• Decision Date: 06 September 2005
• Docket Number: No. 04-35381.,04-35381.
• Citation: 422 F.3d 864
• Parties: Kevin WASHINGTON, Petitioner-Appellant, v. Robert O. LAMPERT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

422 F.3d 864

Kevin WASHINGTON, Petitioner-Appellant, v. Robert O. LAMPERT, Respondent-Appellee.

No. 04-35381.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 3, 2005.

Filed September 6, 2005.

Christine Stebbens Dahl, Assistant Federal Public Defender, Portland, OR, for the petitioner-appellant.

Jennifer S. Lloyd, Office of the Attorney General, Salem, OR, for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon; Garr M. King, District Judge, Presiding. D.C. No. CV 00-1632 KI.

Before: HUG, TASHIMA, and CLIFTON, Circuit Judges.

TASHIMA, Circuit Judge.

Kevin Washington, a state prisoner convicted of aggravated murder and other offenses, appeals the district court's denial of his petition for a writ of habeas corpus. In his habeas petition, Washington asserts a claim of ineffective assistance of counsel ("IAC") in the negotiation and execution of his sentencing stipulation, which waived his right to appeal in exchange for a stipulated sentence of life imprisonment with the possibility of parole.

While a district court has habeas jurisdiction under 28 U.S.C. §§ 2241 and 2254, whether the district court here had jurisdiction turns on whether Washington's waiver of his right to file a federal habeas petition is enforceable with respect to an IAC claim that challenges the validity of the waiver itself. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

BACKGROUND

I. State Court Trial

In December 1994, during the course of a robbery, Kevin Washington ("Washington") murdered James Loupe ("Loupe") in the presence of Loupe's children. Washington was found guilty of two counts of aggravated murder, first degree robbery, first degree burglary, and second degree assault.

Before the sentencing phase of trial, the State and Washington negotiated an agreement stipulating to a sentence of "life imprisonment with the possibility of parole under ORS 163.105(1)(c) and 36 months to run consecutively." The stipulation further stated:

Having been fully informed by his attorneys of the sentencing options available in this case and having been fully informed of possible legal and constitutional challenges to both the jury verdict and the possible sentences, the defendant specifically waives any legal or constitutional objections to pretrial proceedings, rulings by the court, his trial, the jury verdict, his conviction, and to the sentence he will receive based on this stipulation. This waiver is intended to eliminate the possibility of any future litigation regarding the defendant's pretrial motions, his trial, conviction, entry into this agreement, or sentencing. It includes all existing or future claims, known or unknown, and all types of judicial or other review, including but not limited to all claims for post-conviction relief or federal habeas corpus relief.

The stipulation also stated that "[t]he defendant expressly acknowledges and agrees that he is fully and completely satisfied with the advice and representation he has received from his attorneys."

The trial court explained the terms of the stipulation to Washington, stating:

Last Thursday the jury found you guilty of various things. As you know, the next step is to determine the sentence.

And the Aggravated Murder, the jury determines the sentence, okay, and their choices are . . . the death penalty, life without parole, called true life, and life with the possibility of parole after 30 years, but you can request it, you can start requesting parole after 20, and they can turn you down, okay?

It also explained that, in return for Washington's waiver, "the state is agreeing not to seek . . . the death sentence or the life without the possibility of parole." The court then engaged Washington in the following exchange:

Court: And I guess what I want to know from you is you understand what that is, what you're doing there?

Defendant: Yes.

Court: Okay, why don't you repeat to me what you're doing. . . .

Defendant: If I sign this, by signing this agreement I give up my rights for all appeals.

Court: All appeals. And what we call post-conviction.

Defendant: Yeah, post-conviction.

Court: Post-conviction, you can go and say my attorney didn't do a good job for me, they were a bunch of clucks, et cetera. You also give up the right to that. You understand?

Defendant: Uh-huh.

The court then questioned Washington about whether he was satisfied with the representation provided by his attorneys Gareld Gedrose and Ed Jones:

Court: Now, you've — Mr. Gedrose and Mr. Jones have been representing you from the very — from the beginning here. Any complaints?

Defendant: No.

Court: I mean, obviously they didn't win, that's a complaint, but any other things that they could have done that you felt they should have done or anything like that?

Defendant: No.

Pursuant to the stipulation, the trial court sentenced Washington to a term of life with the possibility of parole, with the minimum sentence set at 30 years, as well as a term of 36 months imprisonment, to be served consecutively. Washington did not file a direct appeal.

II. State Court Post-Conviction Proceedings

In 1997, Washington filed a Petition for Post-Conviction Relief in state court. He stated the following claims for relief: "prosecutorial & judicial misconduct — ineffective assistance of counsel — denial of due process & equal protection of the laws." The petition alleged, in relevant part:

After the guilty verdicts, my court-appointed lawyers actively pressured me into accepting a 30 year to life sentence and give up my appellate rights to cover-up their outrageaous [sic] conduct which deprived me of an unbiased, unprejudiced, independent and informed trial jury, a fair trial, and due process of law.

The State moved for summary judgment, arguing that the court should enforce Washington's voluntary and knowing waiver of his right to post-conviction relief. The motion was supported by one of Washington's trial attorneys, Gareld Gedrose ("Gedrose"). Gedrose's affidavit stated:

I made a point of spending a considerable amount of time discussing the options available to Mr. Washington regarding the State's offer. We discussed at length the options available to the jury at this particular stage of the proceedings. I explained to him that there was a possibility of him receiving the death penalty. I expressed my feeling that while I did not think he was a strong candidate for the death sentence, the circumstances surrounding the shooting, the fact that it happened in front of the victim's young children, the fact that it occurred at christmas [sic] and the body was recovered under the Christmas tree, would all allow a jury to reach a different conclusion and impose the death sentence.

* * *

During the course of our conversations, Mr. Washington expressed a distaste for all the options available to him but recognized that, at this stage in the proceedings, it simply was not going to get any better, and while the death penalty was somewhat remote, it was a real possibility and the possibility of a true life sentence was certainly a reality. The opportunity to receive a sentence which included the possibility of parole was his best option and certainly in his best interest.

Gedrose concluded: "I do believe that Mr. Washington did accept and agree to the stipulation with his eyes open and did realize what he was receiving in return. It was a rational decision based on his understanding of the facts and the law as best I could explain them to him."

In his opposition to the State's motion for summary judgment, Washington cited to both state and federal cases discussing the nature of valid, voluntary, and intelligent waivers. He did not cite to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

At the hearing on the State's motion for summary judgment, Washington testified that he did not understand the nature of post-conviction relief and that he did not fully understand the waiver of his right to appeal: "I really didn't know much about it until I was, until I got down here I really didn't know what it was." He also testified that he simply followed his attorneys' instructions and didn't fully understand what his attorney was explaining to him.

The state court granted the State's motion for summary judgment and Washington appealed to the Oregon Court of Appeals. On appeal, Washington argued that the trial court "erred when it found no genuine issue of material fact regarding whether [he] knowingly and voluntarily waived his rights to direct appeal and post-conviction relief." Washington also asserted that the court erred "when it determined that [he] presented no genuine issue of material fact in his application for post-conviction relief based upon the claim of inadequate assistance of trial counsel under the Oregon and Federal Constitutions because of counsel's failure to explain the consequences of the stipulated sentencing agreement." In support of his IAC argument, Washington cited to and discussed both the Sixth Amendment and federal cases, including Strickland. Washington filed an affidavit in support of his appeal, stating: "I believe I was coerced into taking a Plea agreement without being fully aware of what I was giving up. . . . I don't think anyone given the proper legal advice would have given up what I did, in return for the sentence I received."

Addressing Washington's IAC claim, the Oregon Court of Appeals concluded that Washington had not shown prejudice. The court explained:

petitioner offered no evidence that, had he understood the terms of the stipulation, he would have risked the imposition of the death penalty for an opportunity to pursue post-conviction relief. Likewise, on appeal, petitioner makes no claim that the lack of a more thorough explanation of the terms of the stipulation prejudiced him in any way.

The state court of appeals affirmed the trial court's...