571 F.3d 1086 (10th Cir. 2009), 06-7103, Williams v. Jones

Docket Nº:06-7103.
Citation:571 F.3d 1086
Opinion Judge:PER CURIAM.
Party Name:Michael Joe WILLIAMS, Petitioner-Appellant, v. Justin JONES, Respondent-Appellee.
Attorney:Barry A. Schwartz, Kamlet Shepherd & Reichert, LLP, Denver, CO, for Petitioner-Appellant. Diane L. Slayton, Assistant Attorney General, State of Oklahoma, Oklahoma City, OK (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the briefs), for Respondent-Appellee.
Judge Panel:Before KELLY, McCONNELL, and GORSUCH, Circuit Judges.
Case Date:July 08, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1086

571 F.3d 1086 (10th Cir. 2009)

Michael Joe WILLIAMS, Petitioner-Appellant,

v.

Justin JONES, Respondent-Appellee.

No. 06-7103.

United States Court of Appeals, Tenth Circuit.

July 8, 2009

Page 1087

Barry A. Schwartz, Kamlet Shepherd & Reichert, LLP, Denver, CO, for Petitioner-Appellant.

Diane L. Slayton, Assistant Attorney General, State of Oklahoma, Oklahoma City, OK (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the briefs), for Respondent-Appellee.

Page 1088

Before KELLY, McCONNELL, and GORSUCH, Circuit Judges.

PER CURIAM.

Petitioner-Appellant Michael Williams appeals from the district court's denial of his habeas corpus petition brought pursuant to 28 U.S.C. § 2254. The only issue before us is whether, having determined that Mr. Williams received ineffective assistance of counsel in rejecting a plea offer, the Oklahoma Court of Criminal Appeals (" OCCA" ) fashioned a constitutionally permissible remedy. Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse and remand. On remand, the district court should impose a remedy that comes as close as possible to remedying the constitutional violation, and is not limited by state law.

Background

Prior to trial for first-degree murder, an assistant district attorney offered Mr. Williams a ten-year sentence in exchange for a guilty plea to second-degree murder. Mr. Williams wanted to accept the offer, but his attorney, believing that Mr. Williams was innocent, threatened to withdraw from the case if the offer was accepted. The case proceeded to trial, the jury returned a guilty verdict, and Mr. Williams was sentenced to life imprisonment without the possibility of parole.

On direct appeal, the OCCA remanded the case back to the trial court for an evidentiary hearing on whether Mr. Williams's trial counsel rendered ineffective assistance during the plea process. After that hearing, the trial court found that trial counsel had rendered deficient performance but also found that Mr. Williams suffered no prejudice. On review, the OCCA held that Mr. Williams's trial counsel rendered deficient performance and that Mr. Williams was prejudiced thereby because he lost the opportunity to pursue the plea offer with trial counsel. As a remedy, the OCCA modified Mr. Williams's sentence to life imprisonment with the possibility of parole, which is the lowest punishment for first-degree murder. See Okla. Stat. tit. 21, § 701.9; see also Okla. Stat. tit. 22, § 1066.

Mr. Williams unsuccessfully sought habeas relief in federal district court, contending that the remedy for the ineffective assistance of counsel was inadequate. Without acknowledging the federal principle that the remedy must be tailored to the constitutional violation, the federal district court simply held that the modified sentence fell within the statutory sentencing range for first-degree murder in Oklahoma, and thus the modified sentence was inherently constitutional. Williams v. Jones, No. CIV-03-201-RAW, 2006 WL 2662795, at *12 (10th Cir. Sept. 14, 2006). It relied upon cases (inapposite) involving Eighth Amendment challenges to lengthy sentences within statutory limits. Id. (citing United States v. O'Driscoll, 761 F.2d 589, 599 (10th Cir.1985); Gaines v. Hess, 662 F.2d 1364, 1370 (10th Cir.1981)).

Discussion

We must decide only whether the remedy imposed for the Sixth Amendment violation identified by the OCCA is constitutionally adequate. We granted a COA only on the remedy issue, and a COA is a jurisdictional prerequisite to a decision on the merits of an appeal. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The State does not contest the OCCA's finding of ineffective assistance of counsel in this context. But before resolving the remedy issue, we must consider whether Mr. Williams exhausted his claim.

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A. Exhaustion

Notwithstanding the State's position throughout these proceedings that available state remedies have been exhausted, we raised the issue of exhaustion sua sponte and received supplemental briefs. Of course, a habeas petition may be denied despite a failure to exhaust. 28 U.S.C. § 2254(b)(2). But it may not be granted unless exhaustion has occurred (or an exception to exhaustion applies). Id. § 2254(b)(1)(A). Although a State may waive exhaustion, such a waiver must be express and through counsel. Id. § 2254(b)(3).

We need not address whether the State has waived exhaustion or whether exhaustion would be futile, because our review of the record persuades us that Mr. Williams did exhaust by requesting a proper remedy from the OCCA when presenting his ineffective assistance of counsel claim. He relied upon federal caselaw in arguing that specific performance of a plea agreement would be a constitutionally permissible remedy and that his conviction should be reversed, the plea reinstated, or the sentence modified. I R. Doc. 1, Ex. 3 at 7-8. He sought a sentence of ten years.

This theme continued in his federal habeas petition, where he sought reinstatement of the ten-year plea or a new trial based upon ineffective assistance of counsel. I R. Doc. 1, Statement of Facts in Support of Habeas Corpus at 8 1; see also I R. Doc. 1, Ex. 1 at 3; I R. Doc. 1, Ex. 3 at 7-8. Both in the district court and in its response brief on appeal, the State indicated that Mr. Williams had exhausted his state court remedies as to the grounds raised and argued the merits of the remedy.2 I R. Doc. 17 at 2, ¶ 5; Aplee. Br. at 4, 13-25. Although the magistrate judge remarked in a footnote that Mr. Williams did not argue that the OCCA's sentence modification denied him his constitutional rights and that such a claim is unexhausted, I R. Doc. 21 at 18 n.2, Mr. Williams was far more specific: he argued that the remedy for ineffective assistance of counsel required a lesser sentence of ten years or a new trial. Were there any doubt, he then objected to the magistrate judge's report and recommendation on the basis " that the remedy employed by the OCCA is inadequate to vindicate the constitutional error." I R. Doc. 26 at 5 (emphasis omitted). Accordingly, Mr. Williams properly exhausted his claims.

B. Merits

The federal claims that the OCCA adjudicated on the merits are subject to the familiar statutory deferential standards. Habeas relief may be granted only where the state court's decision " was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or " was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). State court findings of fact are presumed correct unless rebutted by the petitioner by clear and convincing evidence. See id. § 2254(e)(1). Our review of the district court's legal analysis is de novo. Douglas v. Workman, 560 F.3d 1156, 1170 (10th Cir.2009).

Page 1090

At the same time, where the state court applies a different (wrong) legal standard or does not decide the claim, deferential AEDPA standards do not apply and our review is de novo. Id. In this case, the district court applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to Mr. Williams's ineffective assistance claims insofar as finding deficient performance and prejudice. Thus, the OCCA identified the correct legal standard 3 so our review would be for an unreasonable application. See Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (an unreasonable application is where the state court applies the correct legal principle in an objectively unreasonable manner). However, in deciding the remedy for the ineffective assistance, the court did not discuss (and may not have been able to apply) the principle that the remedy must be tailored to the injury. United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). Ultimately, the OCCA settled on a remedy that was consistent with state-law sentencing options for first-degree murder and concluded that it was powerless to reinstate the plea offer even with a reversal and new trial.4

We need not decide whether the remedy selected should be accorded deference as an application of federal law or evaluated de novo because even under a deferential standard of review the remedy was objectively unreasonable. In fashioning the appropriate remedy for ineffective assistance of counsel, the remedy " should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests." Id. We think it axiomatic that the remedy for a properly presented constitutional violation should not be frustrated by the sentencing options available under state law, but rather should be consistent with federal law. We proceed to consider the nature of the violation, any resulting prejudice, and the other interests involved.

The plea bargaining process is a critical stage of a criminal prosecution. Nunes v. Mueller, 350 F.3d 1045, 1053 (9th Cir.2003); see

Page 1091

Iowa v. Tovar, 541 U.S. 77, 81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (entry of the guilty plea is a critical stage of the criminal process); Burger v. Kemp, 483 U.S. 776, 803-04, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (pretrial plea negotiations are a critical stage of the criminal process). Accordingly, the Sixth Amendment applies to representation during the plea process. Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Jiminez v. State, 144 P.3d 903, 905 (Okla.Crim.App.2006) (" Although we have no published case declaring this point of law, the right to effective counsel guaranteed by the Sixth and Fourteenth Amendments and Article 2, § 20 of the Oklahoma Constitution protects a criminal defendant from objectively deficient representation by...

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