583 F.3d 1254 (10th Cir. 2009), 06-7103, Williams v. Jones

Docket Nº:06-7103.
Citation:583 F.3d 1254
Party Name:Michael Joe WILLIAMS, Petitioner-Appellant, v. Justin JONES, Respondent-Appellee.
Attorney:Barry A. Schwartz, Kamlet Reichert, LLP, Denver, CO, for Petitioner-Appellant. Diane L. Slayton, Asst. Atty. General, Oklahoma City, OK, for Respondent-Appellee.
Judge Panel:Before HENRY, Chief Judge, TACHA, KELLY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges. KELLY, Circuit Judge, joined by HENRY, Chief Circuit Judge, and HOLMES, Circuit Judge, concurring in the denial of rehearing en banc. GORSUCH, Circuit Judge, joined by...
Case Date:October 14, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1254

583 F.3d 1254 (10th Cir. 2009)

Michael Joe WILLIAMS, Petitioner-Appellant,

v.

Justin JONES, Respondent-Appellee.

No. 06-7103.

United States Court of Appeals, Tenth Circuit.

October 14, 2009

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

Diane L. Slayton, Asst. Atty. General, Oklahoma City, OK, for Respondent-Appellee.

Before HENRY, Chief Judge, TACHA, KELLY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

ORDER

This matter is before the court on appellee's Petition For Pan el Or En Banc Rehearing. We also have a supplement and a response from the appellant. In addition, we have an amicus curiae brief from multiple states. The request for pan el rehearing failed to gather sufficient votes from the pan el; that request is denied.

That portion of the Petition seeking rehearing en banc was circulated to all the judges of the court who are in regular active service. A poll was called and a majority voted to deny en banc reconsideration. The en banc request is likewise denied.

Judge Kelly concurs in the denial of en banc rehearing and writes separately. Chief Judge Henry and Judge Holmes join in that concurrence. Judge Gorsuch has filed a dissent to the denial of en banc rehearing. His dissent is joined by Judges Tacha, O'Brien and Tymkovich.

KELLY, Circuit Judge, joined by HENRY, Chief Circuit Judge, and HOLMES, Circuit Judge, concurring in the denial of rehearing en banc.

Judge Gorsuch in his dissent from denial of rehearing en banc contends that the pan el opinion is overturning a state jury verdict, exacerbating a split in authority over recognition of a new constitutional right, and disregarding requests from the states in our circuit to hear the matter en banc.

The panel opinion simply remanded the matter to the district court to craft a remedy for a Sixth Amendment violation-here, ineffective assistance of counsel in advising Mr. Williams concerning a plea offer. Williams v. Jones, 571 F.3d 1086, 1094 (10th Cir.2009) (per curiam). On the eve of trial, Mr. Williams' counsel informed him of a plea offer that would result in a ten-year sentence. Counsel also told him that if he wanted to accept the deal, he must retain new counsel. Mr. Williams expressed his desire to accept the plea, but " felt pressured" by his attorney's threat to leave, his lack of money (his family already having paid counsel $30,000), and not knowing how he might quickly retain another lawyer. Williams v. State, No. F-2000-1247, slip op. at 19, 24 (Okla.Crim.App. Feb. 18, 2003). In reviewing Mr. Williams' ineffective assistance of counsel claim, the OCCA " agree[d] wholeheartedly" with the state trial court's finding that counsel's ‘ " action in advising his client that he would withdraw from his representation if he entered a guilty plea was highly improper.’ " Id. at 20. " We find [counsel's] ultimatum to [Mr. Williams] concerning the guilty plea-that he would have to obtain new counsel if he desired to accept the ten year deal-amounted to deficient performance under Strickland, " Id. at 23. Next, the OCCA unanimously concluded that Mr. Williams " has indeed suffered prejudice by his trial counsel's action...." Id. at 25.

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A COA is jurisdictional and based on specific issues that meet the requirements of § 2253(c)(2). Miller-El v. Cockrell, 537 U.S. 322, 336-37, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Contrary to the dissent's position, the prejudice question is beyond the scope of the COA because no one contests the state appellate court's finding of ineffective assistance of counsel during the plea process. Thus, the only issue encompassed within the COA is the adequacy of the remedy, not whether Mr. Williams established prejudice as part of his ineffective assistance claim. Much of the dissent's thesis, that ineffective assistance of counsel during the plea process cannot result in prejudice given a subsequent fair trial, simply is not within the grant of the COA.

Insofar as exacerbating a split in authority over a new constitutional right, this case involves neither a new constitutional right, nor a federal circuit split. The dissent's statement that " no decision from the United States Supreme Court has ever held ( or even hinted ) that a lawyer's bad advice to reject a plea offer gives rise to a violation of the Sixth Amendment" is as wrong as its statement that " there's no authority anywhere suggesting that Mr. Williams suffered a Sixth Amendment violation." Dissent from Denial of Reh'g En Banc at 1258, 1260 (emphasis added). In Hill v. Lockhart, the Supreme Court acknowledged that ineffective assistance of counsel could render a plea involuntary where a defendant who has accepted a plea offer can later establish that, but for counsel's erroneous advice, he would not have pled guilty and would have gone to trial. 474 U.S. 52, 56-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The holding of that case is unmistakable: " We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill, 474 U.S. at 59, 106 S.Ct. 366.

This case merely presents the converse of Hill; the defendant contends that but for counsel's erroneous advice, he would have accepted the plea offer and foregone a trial. Not surprisingly, the federal circuits-including our own-have accepted such claims, as have Oklahoma state courts. See United States v. Carter, 130 F.3d 1432, 1442 (10th Cir.1997); Williams, 571 F.3d at 1086 n. 3 (listing cases from nine other circuits); Jiminez v. State, 144 P.3d 903, 907 (Okla.Crim.App.2006).

The dissent's suggestion that the " OCCA's decision deserved more deference from us" is strange given that the dissent's approach is totally at odds with the OCCA's finding of prejudice in this case and in others presenting like circumstances. Rather than defer to the OCCA, the dissent would hold that the OCCA's finding of prejudice is contrary to federal law. See Knowles v. Mirzayance, __ U.S. __, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009) (suggesting that a state court's determination regarding ineffective assistance of counsel must be unreasonable in order for a federal court to grant relief). It is not surprising that the vast majority of courts considering this issue have not taken the dissent's path.1 Consider a likely

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scenario where a defendant is not informed by counsel of a plea offer, proceeds to trial, and receives a much greater sentence. According to the dissent, the defendant has suffered no prejudice even if he can prove that had he been informed of the offer, he would have accepted it.

We merely hold in this case that, having found a federal constitutional violation, a court must fashion a remedy tailored to the injury. United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). The state court did not apply this principle, apparently constrained by state law sentencing options. On remand, the federal district court will exercise its discretion and apply an appropriate remedy after hearing from the parties.

Finally, while I appreciate the input of various state attorneys...

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