Christian v. Ballard

• Citation: 792 F.3d 427
• Decision Date: 08 July 2015
• Docket Number: No. 13–7333.,13–7333.
• Parties: Gregory Brent CHRISTIAN, Petitioner–Appellant, v. David BALLARD, Respondent–Appellee, and Mark A. Bezy, Warden, U.S. Penitentiary, Terre Haute; State of West Virginia; Darrell McGraw ; Teresa Waid, Warden, Huttonsville Correctional Center, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

792 F.3d 427

Gregory Brent CHRISTIAN, Petitioner–Appellant

v.David BALLARD, Respondent–AppelleeandMark A. Bezy, Warden, U.S. Penitentiary, Terre Haute; State of West Virginia; Darrell McGraw ; Teresa Waid, Warden, Huttonsville Correctional Center, Respondents.

No. 13–7333.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 9, 2014.

Decided: July 8, 2015.

ARGUED:Matthew Nis Leerberg, Smith Moore Leatherwood, LLP, Raleigh, NC, for Appellant. Elbert Lin, Office of the Attorney General of West Virginia, Charleston, WV, for Appellee. ON BRIEF:Patrick Morrisey, Attorney General, Christopher S. Dodrill, Assistant Attorney General, Office of the Attorney General of West Virginia, Charleston, WV, for Appellee.

Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit Judges.

Opinion

Affirmed by published opinion. Chief Judge TRAXLER wrote the majority opinion, in which Judge AGEE joined. Judge GREGORY wrote a separate dissenting opinion.

TRAXLER, Chief Judge:

In September 2003, petitioner Gregory Brent Christian (“Christian”) pled guilty in West Virginia state court to two counts of first-degree armed robbery, and to one count of malicious assault arising out of his shooting of a police officer who was investigating the robberies. Pursuant to a plea agreement, Christian was sentenced to concurrent terms of 25 years imprisonment on the robbery counts, and to a consecutive term of 3–15 years imprisonment on the malicious assault count. In addition, the plea agreement allowed Christian to transfer immediately into federal custody and to serve his state sentences consecutively to the 5–year federal prison sentence that he had received for possession of a destructive device and possession of a firearm by a convicted felon.

In state post-conviction proceedings, Christian asserted that he was innocent of the armed robberies and that, while he did shoot at the police officer, the officer had instead been shot by another officer at the scene. Among other things, Christian claimed that his trial counsel failed to investigate the crimes and prepare for trial, that the prosecutor withheld exculpatory evidence, and that his guilty plea was involuntarily coerced by counsel, the prosecutor, and the conditions of the state court jail. Following an evidentiary hearing, the state court denied relief.

Christian next petitioned the district court for federal habeas relief under 28 U.S.C. § 2254. The district court denied relief but granted a certificate of appealability on the issue of whether trial counsel had rendered ineffective assistance in advising Christian regarding the applicability of the West Virginia recidivist statute. Because Christian has failed to demonstrate that the West Virginia state court's rejection of this claim resulted from an unreasonable factual or legal determination, based upon the conflicting evidence presented to it, we affirm.

I.

During the late evening and early morning hours of June 3 and 4, 2002, a Pizza Hut restaurant and a Marathon gas station, located in Huntington, West Virginia, were robbed at gunpoint. Officer Joe Combs and two other police officers responded to the robberies and were advised that the suspects might be at the apartment of Tammy Maynard. A car matching the description of the suspect vehicle was parked in front of Maynard's apartment. When the officers knocked on Maynard's door, she assured them that no one was inside and allowed them to enter. As the officers entered the apartment, however, Christian, who was hiding in the shadows of the hallway, began shooting at them. Officer Combs suffered a gunshot wound

to the chest. Following an exchange of gunfire, Christian surrendered.

Gerald Henderson, a public defender, was appointed to represent Christian. Christian admitted to the police that he shot Officer Combs, but claimed that he thought he was shooting at “a black drug dealer that [he had] just robbed.” J.A. 383. Christian admitted to Henderson “in their initial interview that [he] had committed the robberies.” J.A. 255.

Henderson reviewed the discovery provided by the state, including pictures, an FBI report, Christian's taped statement, and the statements of the police officers. He also participated in several preliminary hearings. Among other incriminating evidence were the statements of Richard Adams, who was also in Maynard's residence when Officer Combs was shot, and those of Maynard. Adams confessed to the two armed robberies and identified Christian as his accomplice. Maynard received money from one of the robberies and believed that Christian knew he was shooting at a police officer. At least one robbery eyewitness identified Christian from a photo line-up. Although Christian did not specifically confess to the police that he robbed the Marathon or Pizza Hut, one of the police officers stated that Christian later admitted that he “figured it was the police [coming into the apartment] because [he] had just robbed a place. ” J.A. 374 (emphasis added).

A.

Christian and Adams were subsequently indicted in the Circuit Court of Cabell County, West Virginia, for two counts of first-degree robbery involving the use of a firearm (Counts I and II). See W. Va.Code § 61–2–12(a)(1). Christian was also indicted for malicious assault on a police officer (Count III). See W. Va.Code § 61–2–10b(b). In a separate federal indictment, Christian was charged with possession of a Molotov Cocktail, in violation of 26 U.S.C. §§ 5861(d), 5845, and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).

Under West Virginia law, first-degree armed robbery is punishable by a determinate term of imprisonment of not less than ten years, but “which may be any number of years from ten to life.”

State ex rel. Faircloth v. Catlett, 165 W.Va. 179, 267 S.E.2d 736, 737 (1980) ; see W. Va.Code § 61–2–12(a)(1). Henderson testified that the maximum penalty that had been upheld by the West Virginia Supreme Court “was 231 years on one count of armed robbery” and that “the last three trials here on armed robbery each individual got between 60 and 80 years.” J.A. 450. Malicious assault of a police officer is punishable by an indeterminate term of imprisonment of “not less than three nor more than fifteen years.” W. Va.Code § 61–2–10b(b). Good-time credits allow a prisoner the opportunity to cut his total sentence in half, but are not applicable to a life sentence. See W. Va.Code § 28–5–27(c), (d).¹

Under West Virginia's recidivist statute, a defendant convicted of a second felony offense will have five years added to his determinate sentence. See W. Va.Code § 61–11–18(a). If the court imposes an indeterminate sentence, the minimum term is doubled. See id. A defendant convicted of a third felony offense shall be sentenced to life in prison, without eligibility for parole for 15 years.See W. Va.Code §§ 61–11–18(c), 62–12–13(c). The prosecuting attorney must give information of prior felony offenses to the trial court “immediately upon conviction and before sentence.” W. Va.Code § 61–11–19. A separate recidivist proceeding is then held, in which a factual determination must be made, either by admission or by jury, that the defendant is the same person. See id.

As relevant to his sentencing in this case, Christian had two qualifying felony convictions. However, because these prior convictions were returned on the same day, they would only have counted as a single felony for purposes of the recidivist statute. See State ex rel. Hill v. Boles, 149 W.Va. 779, 143 S.E.2d 467, 468 (1965).² Thus, Christian had one strike against him and, if convicted of the 2002 state charges, he was subject to a recidivist information that could have raised his minimum determinate sentence for one robbery to 15 years, and his minimum indeterminate sentence for the malicious assault to 6–15 years.

B.

In order to properly evaluate whether Christian's trial counsel rendered deficient advice regarding Christian's exposure to an enhanced sentence under the West Virginia recidivist statute, it is necessary to recount in some detail the circumstances of counsel's representation and the plea negotiations that took place.

As noted above, Christian admitted to Henderson in their initial interview that he committed the armed robberies, for which he faced unlimited determinate state prison sentences from 10 years to life imprisonment, and that he shot Officer Combs, for which he faced a 3–15 year indeterminate prison sentence, without regard to any recidivist exposure. In addition, Christian was facing federal prison sentences for his destructive device and firearm charges. Christian “directed [Henderson] to engage in plea negotiations from the onset of counsel's representation,” J.A. 255, and this was done in cooperation with his federal public defender (“FPD”).

As early as December 2002, Christian was willing to accept a 25–year sentence for both robberies, plus the 3–15 year sentence for the malicious assault, provided the time he received for the robberies was “concurrent with any time he receive[d] on his pending Federal charges.” J.A. 594. Christian “suffers from Hepatitis C

and substantial liver damage,” id., and he wanted to serve as much of his time as possible in the federal penitentiary, where he felt the conditions were better. At the time, Christian's FPD expected Christian's federal sentence to be 188 months. Under this circumstance, Christian would be able to serve most if not all of his state sentence on the robbery charges in federal prison (with application of the state good time credits), leaving him to serve only the 3–15 years on the malicious assault charge in state prison. Christian would also be eligible for parole from the malicious assault conviction in three years, once he began serving that sentence, although counsel acknowledged that there was a good chance that Christian would not survive that long in light of his poor health.

The state prosecutor was willing to consider Christian's proposal...